Court Halts Down Syndrome Abortion Ban in Ohio

by | March 15, 2018

By Jackie Borchardt

Ohio's new Down syndrome abortion ban is on hold after a federal judge in Cincinnati sided with abortion providers who claimed the ban was unconstitutional.

U.S. District Court Judge Timothy Black issued a preliminary injunction Wednesday blocking the new law from going into effect next week while the case continues. Black wrote in a 22-page order that House Bill 214, which was signed by Gov. John Kasich in December, violates Supreme Court opinions that say a state can't prohibit a woman from making the decision to end a pregnancy before the fetus is viable.

"Here, Ohio's new law wrongfully does just that: it violates the right to privacy of every woman in Ohio and is unconstitutional on its face," Black wrote.

The Ohio law bans abortions after a prenatal screening or test shows the fetus likely has Down syndrome. Doctors who perform an abortion, with knowledge of a possible Down syndrome diagnosis, could be convicted of a fourth-degree felony, punishable by up to 18 months in prison and a $5,000 fine.

Supporters of the law said it ended discrimination against unborn children with the genetic anomaly. Ohio does not keep statistics on reasons women seek abortion or whether aborted fetuses had been diagnosed with Down syndrome. Nationally, abortion rates after learning of a possible Down syndrome diagnosis likely range from 50 to 85 percent, according to a 2012 survey of abortion studies.

The ACLU of Ohio sued the state in February on behalf of Preterm Cleveland, Planned Parenthood of Ohio Southwest Region, Women's Med Center of Dayton, Dr. Roslyn Kade and Planned Parenthood of Greater Ohio. They argued the law would force Ohio women to travel out of state for abortions or force women to continue pregnancies against their will.

"This law does absolutely nothing to support people with disabilities -- it's just another ploy to make it nearly impossible for Ohio women to get the care they need," Freda Levenson, legal director for the ACLU of Ohio, said in a statement Wednesday. "We are committed to making sure this unconstitutional law is never enforced and today's ruling brings us one step closer."

Three other states have passed similar laws, but none have taken effect. Laws are on hold in Indiana and Louisiana pending court challenges.

Black cited Indiana Judge Tanya Walton Pratt, who wrote that as long as a woman has a right to choose to terminate a pregnancy, the state cannot "examine, let alone prohibit, the basis or bases upon which a woman makes her choice."

Attorneys for the state argued that Supreme Court decisions upholding a woman's right to abortion only applied to her right to choose whether to have a child, not a "particular child."

Black disagreed.

"The state cannot dictate what factors a woman is permitted to consider in making her choice," Black wrote. "The state's attempt to carve out exceptions to a categorical right where none exist fails as a matter of law... The state's argument that a woman must make this choice from behind a veil of ignorance, oblivious to the circumstances of the child she is carrying, finds no support in the law."

Black also rejected state attorneys' claim the law prevents discrimination and protects the Down syndrome community.

"The state's interest in potential life -- whether couched as anti-'discrimination' or otherwise--does not become compelling until viability," Black wrote.

(c)2018 Advance Ohio Media, Cleveland