Down Syndrome Abortion and the Courts

Above: Down Syndrome advocate Frank Stephens testifies before Congress

Last month, Ohio passed a law to prohibit doctors from committing abortions sought in response to a prenatal diagnosis of Down Syndrome. Ohio is the third state to pass such a law. North Dakota was the first to do so; there, enforcement is made easier by the fact that there is only one abortion vendor in North Dakota, and it has not sued to overturn the law. The abortion industry did sue over Indiana’s ban on abortion for Down Syndrome, and Judge Pratt of the U.S. District Court for the Southern District of Indiana struck it down in September; that ruling is now under appeal. A lawsuit seems likely in Ohio as well.

The ideal outcome would be for the Indiana and/or Ohio laws to be reviewed by a pro-life Supreme Court, which could use them as a vehicle to reverse Roe v. Wade and Planned Parenthood v. Casey. But we do not have a pro-life Supreme Court, and we cannot count on an anti-unborn Justice’s death or retirement to give us a pro-life Supreme Court during the time it will take Down Syndrome abortion bans to work their way up the judicial ladder.

This leaves the alternative path that the pro-life movement has pursued for decades: craft arguments to appeal to Justice Kennedy, who won’t overturn Roe but is prepared to accept the legality of at least some limits on abortion. It is Justice Kennedy who provided the deciding vote in favor of the partial-birth abortion ban, among other pro-life victories. However, he ruled against us in the fight to regulate abortion businesses like the medical facilities they claim to be.

How might Justice Kennedy rule in favor of Down Syndrome abortion bans? Simple: point out that they do not impact the core rationale of Roe v. Wade and Planned Parenthood v. Casey.

Judge Pratt’s ruling in the Indiana case, while unfavorable, did a good job of summarizing this position:

The State’s argument begins with the woman’s liberty interest as articulated in Casey: “the right of the individual … to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Filing No. 76 at 26, citing Casey, 505 U.S. at 851 (emphasis added)). According to the State, “both the woman’s rights and the State’s interests are different if the pregnant woman decides she wants a baby generally, but not the particular baby she happens to be carrying. A woman has already decided to bear a child. Although her privacy and liberty interests have not completely evaporated, those rights are not as central as they once were.”

Judge Pratt rejected this argument, stating that the right to privacy prohibits any state “examination” of the “basis for a woman’s choice to make this private, personal and difficult decision.” But Judge Pratt’s reasoning proves far too much. It would render unconstitutional numerous state laws banning coerced abortion and requiring abortion businesses to screen for coercion, because coercion is a “basis” that the state “examines.” And laws requiring informed consent before an abortion can be committed—which the Supreme Court has upheld—could be seen as banning abortions sought solely on the basis of ignorance (e.g., the mistaken belief that an unborn child is “just a clump of cells”).

And if a woman has the right to choose not only whether to have a child, but what kind of child to have, wouldn’t that require all states to permit wrongful birth lawsuits to enforce that supposed right? Many states prohibit wrongful birth lawsuits, for very good reasons.

These arguments give Justice Kennedy a way to uphold bans on abortion on the basis of Down Syndrome, without upending his prior abortion jurisprudence. In plain English, he can do the right thing for children with Down Syndrome and still save face.