Ohio Senate passes bill that bans abortions if patient received diagnosis of Down syndrome

The focus on disability is a strategic and shrewd move on the part of abortion opponents.

On April 28, 2015, a woman walks past the Center for Women’s Health in Cleveland. (CREDIT: AP/Tony Dejak)
On April 28, 2015, a woman walks past the Center for Women’s Health in Cleveland. (CREDIT: AP/Tony Dejak)

On Wednesday, the Ohio Senate passed a bill banning abortions for patients who received a diagnosis of Down syndrome. Under the bill, a physician who performs an abortion in this situation could held liable for damages, stripped of their medical license, and charged with a fourth-degree felony, according to the Associated Press.

Earlier in the month, the House passed its version of the legislation, which means the ban will go to the desk of Gov. John Kasich (R) soon. Gov. Kasich has supported severe abortion restrictions, including a 20-week abortion ban.

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It’s already hard to get an abortion in Ohio, as the state has eight other abortion restrictions. That includes a requirement for patients to receive state-directed counseling that provides information discouraging the person from an abortion, a 24-hour wait until a procedure is provided, parental consent before minors can receive abortions, mandatory testing for a fetal heartbeat before obtaining an abortion, and a 20-week abortion ban, according to the Guttmacher Institute. Ohio Right to Life has lobbied state legislators for more than two years to pass restrictions on abortion after a diagnosis that the fetus has Down syndrome.

This type of legislation, while uncommon, is beginning to spread, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. North Dakota was the first state to enact a bill that would forbid someone to choose abortion based on a prenatal diagnosis of Down syndrome in 2013. The law is still in effect. In 2016, then Indiana Gov. Mike Pence (R) signed several abortion restrictions into law, including a ban on abortions due to a fetal anomaly and the sex and race of the fetus. A federal judge blocked the law. The Louisiana Genetic Abnormalities Ban was also signed into law in 2016. Any person who violates the law could receive a $1,000 fine and up to two years in prison. The Center for Reproductive Rights filed a lawsuit on behalf of several abortion providers, and the state has delayed its enforcement. In Texas, the state senate passed a bill that would stop patients from being able to sue their doctor if they found out there was a fetal anomaly during testing and the doctor failed to disclose this information to them.

Nash said that abortion opponents’ focus on disability in this legislation is strategic.

“A piece of it is similar to the fight over sex selection and race selection abortion bans in the sense that abortion opponents are not only trying to ban some abortions but are trying to use it as a wedge between different parts of the progressive community,” Nash said. “You can see how abortion opponents use a genetic anomaly ban to try to create tension between disability rights advocates and reproductive health and rights advocates. I think that is part of what is underlying this.”

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These restrictions are also part of their annual state-by-state guide to model legislation for abortion restrictions, titled Defending Life, which they call the Prenatal Nondiscrimination Act. These bans are in conflict with Roe v. Wade, Nash said, but as with many restrictions that are in conflict with Roe, some state legislatures are going to try every restriction they can and see what sticks.

“These genetic anomaly bans follow in this line of trying to make it harder to access abortion under as many circumstances as possible and enacting so many barriers that a woman cannot navigate all of the obstacles and make it impossible for providers to keep the doors open,” Nash said. “There is this piling-on effect and across state legislatures … After you pass eight or 10 major abortion restrictions, the legislators start to look at other kinds of restrictions that may only affect a smaller number of abortion patients.” 

 A Senate committee heard witnesses before the bill passed — two against the bill, two in favor, and an interested neutral party, according to the Columbus Dispatch. Larry and Jackie Keough, who have a daughter with Down syndrome called abortion in these circumstances a “genocidal practice.” Ann Chasser, the sister of a man with Down syndrome said that she had concerns about the legislation.

“My main concern about this legislation is the impact it would have on women, especially women who do not have the capacity, ability, family support, community network or other resources to provide a productive, happy life for a child with Down syndrome,” Chasser said, according to the Columbus Dispatch.

There have been changes to the profession of genetic counseling over the years as technology has changed along with ethical practices. According to a 2016 journal article called, “Strange Bedfellows: anti-abortion and disability rights advocacy,” there has been a paradigm shift in how doctors treat counseling on fetal anomalies. The American Congress of Obstetricians and Gynecologists released a statement in 2007 that recommended all pregnant people be offered screenings and said physicians are obligated to inform patients of health care options, including prenatal testing, without judgment. Some disability rights advocates may argue that simply offering the option may unintentionally bias the patient, but that ultimately comes at the cost of the autonomy of the patient, wrote Stefanija Giric in the Journal of Law and Biosciences:

Additionally, restricting abortion in the name of affirming the dignity of and protecting individuals with disabilities provides pro-life activists an easy way to galvanize support for further restrictions on abortion without actually providing tangible support for individuals with disabilities to succeed in a world that is not amenable, and oftentimes hostile, to their disabilities after their birth.

Although conservatives may push for restrictions on abortions related to fetal anomalies, they often neglect to support legislation or funding that would benefit the lives of people with disabilities, Giric noted.