A bill in the Ohio Legislature that would ban a woman from having an abortion solely because of a prenatal diagnosis of Down syndrome is blatantly unconstitutional and probably unenforceable.
The bill, still winding its way through the Ohio House of Representatives, would make it a felony for a doctor to perform an abortion if he or she knows the pregnant woman is seeking the procedure to avoid having a baby with Down syndrome. It would also require the state to revoke the doctor’s license if the procedure were conducted.
What sets this bill apart from most of the other state anti-abortion bills proposed over the last few years is its focus on the woman’s motivation. It if passes, Ohio would join just eight other states that outlaw abortions if the woman is motivated by the sex of the fetus, or by the race of the fetus, or because the fetus has been diagnosed with genetic abnormalities. The last is law in North Dakota. There are no reported cases of any of these laws being enforced.
Nonetheless, they represent a troubling effort to demonize women and their doctors based on the reason the abortion is being performed. In reality, a woman’s motivation is immaterial. Supreme Court rulings have guaranteed a woman’s right to an abortion for any reason up to the point at which the fetus is viable outside the womb. What’s more, by criminalizing the behavior of doctors, these laws have a chilling effect on the relationship between physicians and their patients, and would likely discourage a woman from having a frank conversation about her decision.
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Down syndrome is a chromosomal disorder that typically results in intellectual and physical disabilities. According to an academic survey of published literature on the subject, 60 percent to 90 percent of women with such diagnoses in the United States got abortions from 1995 to 2011.
If the bill were to pass, a woman in Ohio could still choose to have an abortion if her fetus were perfectly healthy, but she would not be allowed to do so if the fetus were diagnosed with Down syndrome. What sense does that make?
In any case, this bill is not primarily designed to prevent discrimination against people born with Down syndrome, as some Ohio state legislators contend. Rather, it is another in a long string of efforts to undermine a woman’s constitutional right to a legal abortion, this time shamelessly cloaked as protection of the disabled.