A U.S. appeals court has blocked a law in Ohio that prohibits women from having abortions because they would otherwise give birth to babies with Down syndrome.
The 2-1 decision on Preterm-Cleveland, et al v. Lance Himes, issued Friday by the 6th Circuit Court of Appeals in Cincinnati, upholds an injunction by the lower court blocking enforcement of the law.
The restriction, passed in 2017, would have required doctors to attest in writing a woman isn’t seeking an abortion because of fetal Down syndrome. It was contested by abortion clinics and the ACLU, who called it “another thinly veiled attempt to push abortion out of reach and interfere in a woman’s personal decision.”
The majority opinion, written by Judge Bernice Bouie Donald, concluded that women would be undergoing medical tests showing a Down syndrome diagnosis before a fetus is viable, generally understood to be roughly 24 weeks into a pregnancy, and that therefore any restriction on abortion at that time would be unconstitutional.
The decision relies on the Supreme Court’s 1973 Roe v. Wade ruling, which legalized abortion nationwide for up to fetal viability.
The latest available U.S. data, from 1995-2011, show that 67% of pregnancies that test positive for Down syndrome end in abortion. Women can screen for Trisomy 21, a chromosomal abnormality, through a blood sample done 10 to 13 weeks into a pregnancy.
The state argued that it could pass its law because it had a right to prevent discrimination, but Donald, a nominee of President Barack Obama, wrote that the argument “lacks rigor and is deceptive in its construction” and that “the state’s interest in preventing discrimination does not become compelling until viability.” Siding with Donald was Judge R. Guy Cole Jr., who was appointed by former President Bill Clinton.
This year, the Supreme Court declined to review an injunction blocking a similar law in Indiana that made it illegal for women to have abortions on the basis of race or sex or because they learn they will otherwise give birth to babies with Down syndrome. The justices said they would let lower courts rule on the matter, and the Indiana law remained blocked.
Justice Clarence Thomas wrote a concurrence in the decision in which he laid out ways that abortion could be used for eugenics and said the high court would someday need to weigh in on the issue. He wrote about how women in Iceland abort nearly every time they learn they would otherwise give birth to a baby with Down syndrome and about how families in China have tended to abort female fetuses as part of a population control measure.
“Although the Court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote.
Judge Alice Batchelder referenced Thomas’ opinion in her dissent on the Ohio case. She said the law was a reminder of the Supreme Court’s Buck v. Bell decision, which allowed states to sterilize “the unfit,” including people with intellectual disabilities.
“The eugenicist impulse on display in Buck, and amplified in its aftermath, is no mere relic of history. Today, many countries celebrate the use of abortion to cleanse their populations of babies whom some would view — ignorantly — as sapping the strength of society,” wrote Batchelder, an appointee of President George G.W. Bush.
Anti-abortion organization Students for Life of America blasted the decision in a statement by its president, Kristan Hawkins.
“The inhumanity of throwing people away because they are different from us must end. But the abortion industry’s abuse of courts to force their agenda will not go on forever,” she said. “Prenatal testing should not be used to decide which babies deserve a chance at life or which will die.”
