It’s a ban that even supporters acknowledge will be hard to enforce. Yet 2021 has been a breakthrough year for legislation in several states seeking to prohibit abortions based solely on a prenatal diagnosis of Down syndrome.
Governors in Arizona and South Dakota recently signed such bills into law, and similar measures are pending in North Carolina and Texas. Most significantly, a federal appellate court said Ohio could begin to implement a 2017 law that has been on hold.
Although that ruling by the 6th U.S. Circuit Court of Appeals conflicted with other federal court decisions, anti-abortion activists say it increases the chances that the U.S. Supreme Court will agree to consider a case addressing the challenging issues the legislation poses. That could clear the path for bans to be enacted in some other states where courts are blocking them.
Just this week, the high court – with a 6-3 conservative majority resulting from three appointments by former President Donald Trump – signaled its willingness to reconsider the 1973 Roe v. Wade ruling establishing a nationwide right to abortion. The justices agreed to consider a Mississippi law that seeks to ban abortions after 15 weeks. Roe essentially legalized any abortion taking place before a fetus could survive outside the mother’s womb, generally around 24 weeks.
Katherine Beck Johnson, a lawyer with the conservative Family Research Council, acknowledged that the Down syndrome laws might be easy to circumvent. Doctors could tell women not to share their specific reasons for wanting an abortion.
“But even if it’s hard to enforce, it’s worth being passed,” she said, “It’s important for a state to show they're not supporting eugenics; they want to remove the stigma of people who have Down syndrome.”
Opponents of the bills, including some parents with children who have Down syndrome, argue that elected officials should not be meddling with a woman’s deeply personal decision on whether to carry a pregnancy to term after a Down syndrome diagnosis.
“There’s something condescending about these bans, suggesting people don’t have the ability to make their own decisions,” said Holly Christensen, a teacher and newspaper columnist in Akron, Ohio, whose 8-year-old daughter, Lyra, has Down syndrome.