Federal government backs Ohio on Down syndrome abortion law

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COLUMBUS, Ohio — The federal government took Ohio’s side Tuesday in a lawsuit over the state law prohibiting doctors from performing abortions based on a fetal diagnosis of Down syndrome.

The Justice Department said in a filing that “nothing in Ohio’s law creates a substantial obstacle to women obtaining an abortion, and nothing in the Constitution or Supreme Court precedent requires States to authorize medical providers to participate in abortions the providers know are based on Down syndrome.”

Government attorneys argue the bill doesn’t outlaw any abortions, it only places restrictions on providers.

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The full 6th U.S. Circuit Court of Appeals has agreed to rehear the case after a three-judge panel agreed with a lower court that the 2017 law was likely unconstitutional. That left in place a federal judge’s earlier order placing enforcement of the law on hold.

Wednesday, which marked the 47th anniversary of the Supreme Court ruling on Roe v. Wade, people from both sides of the issue spoke out about the ban.

Taking up an argument used by supporters, the federal government told the court the law protects against discrimination based on disability, sticking with the principle established in other laws, such as the Americans for Disabilities Act.

The law would specifically outlaw abortions in cases where there is a positive test result or prenatal diagnosis indicating Down syndrome. Physicians who perform such an abortion could be charged with a fourth-degree felony, stripped of their medical license and held liable for legal damages under the law.

A pregnant woman would face no criminal liability. Abortion rights groups say the law falls into a category of restrictions called “reason bans” for attempting to get into the mind of a pregnant woman as she decides whether to continue or end a pregnancy.

Alli Martin of Lancaster told 10TV her daughter wasn't diagnosed with Down syndrome until the day after she was born.

"Obviously it's an emotional diagnosis it's something that's hard to wrap your head around," she said.

Martin says while abortion was never option for her, she knows other women whose doctors have suggested it when confronted with the diagnosis.

"Having a daughter with Down syndrome, I don't necessarily agree with terminating a baby just strictly because they are going to be born with Down syndrome. My daughter is one of the most amazing girls I've ever met and seeing the joy that she shares with others is incredible," she said.

Ohio wants to make illegal for a woman to terminate a pregnancy when they disclose to a doctor it's the sole reason for an abortion.

Jessie Hill represents the American Civil Liberties Union of Ohio, which says the law criminalizes a woman's right to choose.

"It's not up to the government to tell her what are or not appropriate reasons for ending a pregnancy," said Hill.

Anti-abortion groups say current law amounts to discrimination.

"We're judging the value of a life off its utility based of whether some people think they’re a nuisance or not — that's what's so evil about aborting a child with a disability like Down syndrome," says Gabriel Vance, Director of External Affairs with Created Equal.

Hill said by passing this law, the state would discourage women from speaking with their doctors.

Alli Martin agrees — the ban may not do what supporters think it will.

"If someone goes to their doctor, ‘I want to terminate my pregnancy because my baby is born with Down syndrome,’ and the doctor says, ‘I can't because that's against the law,’ but who’s to say they won't go to another doctor and say, ‘I want to abort my baby just because,’" she says.

The ACLU sued the Ohio Department of Health, the state medical board and county prosecutors to overturn the law on behalf of Planned Parenthood and several abortion providers.

The Down Syndrome Society of Central Ohio released this statement regarding the ban:

“The Down Syndrome Association of Central Ohio (DSACO) has not been involved with the Down Syndrome Non-Discrimination Act and remains uninvolved today, including in the Sixth Circuit appeal where the Department of Justice filed a brief yesterday. DSACO celebrates all of the abilities and gifts of individuals with Down syndrome, and we represent families, professionals, and a broader community who are on both sides of this issue. We continue to believe that empowering families with up-to-date and accurate information and resources is the best way to support families receiving a Down syndrome diagnosis – both prenatally and postnatally.

This belief is reflected in DSACO’s efforts and success in the proposal and passage of the Down Syndrome Information Act (Ohio H.B. 552), which requires healthcare providers to provide expectant and postpartum patients an unbiased, up-to-date fact sheet about Down syndrome along with the names of both local and national Down syndrome organizations through the Ohio Department of Health. Ohio H.B. 552 was signed into law by Governor Kasich on December 22, 2014. In an effort to ensure compliance, DSACO formed a Medical Advisory Committee in 2016, comprised of leaders within Central Ohio’s largest health care systems.

The DSACO community is a close-knit group. We know from our families that when a family receives a Down syndrome diagnosis, it is an extremely emotional and private event. Parents are overwhelmed with emotions, questions, and often look to connect with other parents who have received this unexpected diagnosis. We work hard to provide support and resources during that time, while respecting the privacy wishes of the families. We put significant efforts in raising awareness, encouraging acceptance, and promoting inclusion in all programs and services we offer to individuals with Down syndrome, their families, and the community professionals who serve them.”

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