This fall, Ohio will likely become the second state in the country to prohibit doctors from performing abortions for pregnant women who do not want to have a child with Down syndrome.
In 2013, North Dakota passed similar legislation that encompassed any “genetic abnormality or a potential for a genetic abnormality” but Ohio’s H.B. 135—which is expected to clear the Republican-controlled legislature in the upcoming legislative session—only prohibits abortion for “a pregnant woman who is seeking the abortion because of a test result indicating Down Syndrome in an unborn child.”
Governor John Kasich has yet to comment on the bill. If he signs it into law, the issue of Down syndrome is likely to become yet another point of contention in an increasingly heated abortion debate, right alongside 20-week bans and current GOP cries for “no exceptions.”
But how would such a bill even be enforced if enacted into law?
As The New York Times reports, the North Dakota ban has not resulted in any prosecutions and the state’s only abortion provider—the Red River Women’s Clinic—reports not having had “any women who presented saying they need an abortion because of a fetal diagnosis.” Seven states have bans on sex-selective abortions but no organization contacted by the Times could report any instances in which those bans had been enforced, either.
Abortion-rights advocates say that bans on selective abortion are essentially unenforceable, and that they are part of a broader pro-life strategy to gain rhetorical ground. Anti-abortion activists claim that the bans protect the unborn but, when asked how they should be enforced, neither Ohio Right to Life (ORTL) nor North Dakota Right to Life (NDRTL) nor the National Right to Life Committee (NRLC) immediately responded to requests for comment from The Daily Beast.
In order to prosecute physicians, both North Dakota’s law and Ohio’s bill would require the state to definitively establish the intent of a woman seeking an abortion and the physician’s knowledge of that intent—a tall burden of proof for such a complex decision.
North Dakota’s law reads: “[A] physician may not intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely…because the unborn child has been diagnosed with [a genetic anomaly.]”
Ohio’s bill lacks the “solely” language but still indicates that the abortion must be sought “because of” Down syndrome.
It also true that the majority of women who receive prenatal Down syndrome diagnoses choose abortion, according to a 2012 review in Prenatal Diagnosis. Down syndrome can be diagnosed early in pregnancy with “almost 100 percent accuracy,” according to the National Down Syndrome Society.
But how would a state like Ohio determine whether or not any individual woman’s choice was related to such a diagnosis, let alone prove that it was her “sole” motivation? Would the state automatically assume motive in the instance of an abortion following a prenatal Down syndrome diagnosis?
Lynn Paltrow, the executive director of National Advocates for Pregnant Women (NAPW), told The Daily Beast that the enforceability of the ban may be beside the point.
“Pro-life groups understand that proposing, advancing, and passing legislation that limits or punishes women who seek to terminate a pregnancy is a useful organizing tool,” she wrote in an email. “In other words, they recognize that they can keep their base mobilized by legislation whether it passes or not and whether or not it is actually enforceable.”
But Ohio’s law does contain language that could make it slightly more actionable than the North Dakota legislation. In its current form, the law notes that “within ninety days” of passage, the state department of health “shall adopt rules” in order to “assist in compliance.”
“At this point, those rules could include just about anything, including requiring patients to disclose the reason they are seeking abortion care,” Kellie Copeland, the executive director of NARAL Pro-Choice Ohio, told The Daily Beast.
Even then, Copeland said, the law would simply discourage women from disclosing medical information to protect herself and her physician. The bill currently proposes that physicians found in violation of the provision be charged with a fourth-degree felony, stripped of their license, and held liable for civil damages as well.
ORTL President Mike Gonidakis told The New York Times he framed his support for the bill in terms of his valuation of families affected by Down syndrome: “You go to any supermarket or mall and see these families who just happen to have a child with Down syndrome, and they will tell you how fortunate they are to have those children.”
But as the Times further reports, national Down syndrome organizations have not taken an official position. Some parents of children with Down syndrome support the ban, referring to the abortion of fetuses diagnosed with the genetic disorder as a form of “extinction.”
Other parents of children with Down syndrome, like journalist David Perry, think of the proposed ban as a “wedge issue” and a disingenuous attempt on the part of the pro-life movement to “garner sympathy from moderates.”
“If you want to help people with Down syndrome, don’t politicize their births,” Perry wrote for CNN. “Instead, get to work building a more inclusive society.”
Advocates like Perry prefer a strictly “pro-information” approach, in which women receive updated and less stigmatizing data about Down syndrome in the event of a prenatal diagnosis. The Ohio legislature unanimously passed a pro-information law in 2014, the seventh such law passed since 2012.
But, as Perry noted in a January RH Reality Check op-ed, pro-information laws have also become politicized by anti-abortion groups. Passed in 2014, Louisiana’s pro-information law requires that any information given to women “does not engage in discrimination based on disability or genetic variation by explicitly or implicitly presenting pregnancy termination as a neutral or acceptable option.”
In other words, instead of presenting women with all options and allowing them to choose, the Louisiana law mandates that abortion cannot be discussed at all in the event of a diagnosis unless it is presented as unacceptable.
As for the Ohio bill, Democrats and other abortion-rights supporters are questioning the stated intent behind the bill. Ohio Democrats attempted to attach several amendments to H.B. 135 that would increase special education funding, paid parental leave, and sick leave—amendments that were ruled as not being germane to the bill, and probably appropriately so, legally speaking.
But still, the bluff has been called: Do abortion opponents care about Down syndrome or does the debate merely suit their purposes?