In a legislative landscape where politicians seek to restrict abortion from all angles — everything from lengthy waiting periods, to harsh restrictions on clinics, to bans on insurance coverage — opponents of the procedure are looking for yet another approach.
Now, a new battleground is emerging: Anticipating why a woman may choose to have an abortion, and then outlawing ending a pregnancy for this particular reason.
For instance, first-of-its-kind legislation currently up for debate in Ohio would prohibit a woman from having an abortion because she found out her fetus has a Down syndrome diagnosis. Ohio’s GOP-controlled legislature, which has enacted a dizzying array of anti-abortion laws over the past several years, is expected to approve the bill this fall.
Down syndrome is a common chromosomal condition that often leads to cognitive disability. Prenatal testing can help reveal whether a pregnant women is carrying a fetus with this condition. According to several recent studies, most of the women who discover their unborn child might have Down syndrome decide to have an abortion.
Proponents of Ohio’s legislation say that allowing women to end a pregnancy because they don’t want a baby with Down syndrome amounts to discrimination.
“This bill seeks to right the wrong that has been so blatantly practiced in the state of Ohio and gives every person with the potential of a Down syndrome diagnosis the basic right to live,” Ohio Rep. Dave Hall (R), one of the primary sponsors of the legislation, said when the bill was first introduced this past spring.
Similar logic has been deployed to justify other state-level bills that prohibit women from ending a pregnancy based in the characteristics of her fetus. So-called “sex-selective abortion bans,” for example, make it illegal to have an abortion based on whether the fetus is a boy or girl. These measures — based on the misperception that Asian American women are more likely to terminate a pregnancy if they find out they’re going to have a girl — are specifically framed in terms of protecting women’s rights and countering gender discrimination.
Sex-selective abortion bans have some notable distinctions from Down syndrome abortion bans. For one, there’s no evidence that the Asian American or Pacific Islander individuals who live here in the U.S. are actually having abortions based on gender (and, in fact, those ethnic communities oppose this particular abortion restriction because they say it’s racially biased).
Still, both types of legislation quite literally come from the same anti-abortion playbook.
Americans United for Life (AUL), a group that writes state-level abortion restrictions and shops them around to conservative lawmakers, has published a guide for writing new laws to ban abortions based on the characteristics of the fetus, like sex and genetic abnormality. “Clearly, this chilling slide toward eugenics — specifically, altering or eliminating certain hereditary characteristics — must be confronted,” Denise Burke, AUL’s vice president of legal affairs, writes in the introduction to that policy guide, which goes on to reference Down syndrome.
So far, six states have successfully enacted bans on abortions based on sex. (It’s difficult to challenge these laws in court because there’s so little evidence that sex-selective abortions actually happen.) Meanwhile, Arizona has banned abortions based on race and North Dakota has banned abortions based on genetic abnormalities. Ohio is the first state to make a specific foray into prohibiting women from having an abortion because of a Down syndrome diagnosis.
Opponents of Ohio’s proposed bill are expressing concern that it would position abortion doctors as gatekeepers, requiring them to determine whether their patient is seeking an abortion for a reason deemed acceptable by the state legislature.
“It hearkens back to the days before Roe v. Wade, when women would be interrogated when they came in because of possible miscarriage — was it really a miscarriage, or did something interfere with the pregnancy?” Dr. Nancy Stanwood, the board chair of Physicians for Reproductive Health and an abortion provider practicing in Connecticut, told ThinkProgress. “It really puts doctors in the role of being enforcers of police state law.”
As the bill is currently written, doctors could face felony charges, possible jail time, and the loss of their medical license if they’re caught terminating a pregnancy for a woman who cited a Down syndrome diagnosis as her primary motivation for the procedure.
“I’m there to support my patients in their medical decision making,” Stanwood said. “I’m not there to scrutinize them and decide whether they deserve care.”
Abortion rights supporters also say that the legislation is attempting to drive a wedge between reproductive rights and disability rights. Kellie Copeland, the executive director of NARAL Pro-Choice Ohio, thinks the anti-abortion lawmakers pushing this bill in her state chose to focus on Down syndrome because “they thought it was a medical complication they could exploit.”
Indeed, the framing of the legislation doesn’t reflect the reality of these difficult pregnancy decisions. The people who end a pregnancy because of a genetic abnormality typically don’t say they made that choice because they don’t value the lives of people with Down syndrome. Instead, they’re concerned about the difficulties in store for a child living with disabilities, and they’re worried they don’t have the resources to effectively parent that child.
And, under the guise of fostering more compassion for people with disabilities, these legislative efforts ultimately play into larger narratives about who is allowed to have an abortion. Looking at abortion through this lens creates a hierarchy of the “acceptable” reasons to end a pregnancy stacked against the “selfish” reasons to end a pregnancy.
“I think they’re trying to create this narrative that there are some reasons that are okay and some reasons that are not okay — to further stigmatize abortion,” Copeland told ThinkProgress. “But whatever reason a woman decided to have an abortion is a good reason. If she feels she is unable to continue a pregnancy, that’s the reason, and that’s good enough.”
“Everyone is making the best choices they can in their own life circumstances,” Stanwood, who recounted sitting with patients as they received difficult news about genetic abnormalities, agreed.
Ohio Gov. John Kasich (R), one of the current GOP candidates for president, has not yet taken a position on the Down syndrome bill in his state. But he’s shown a willingness to approve a wide variety of legislation targeting abortion. Kasich, who just last week suggested that Republicans “focus too much” on abortion issues, has signed 16 separate restrictions on the procedure during his time in office — more than any other Ohio governor in history.