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Capitol Correspondence - 03.17.20

Debate Between Down Syndrome and Abortion Advocates Catches Eye of National Media

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Because lawmakers at all levels of government consider our members to be resources on disability topics, ANCOR is sharing reporting by Politico Pro to keep our members informed of broader, national discussions featuring disability advocacy groups which might come up on a general basis.

“Abortion foes and some disability rights advocates are forming an unusual alliance around efforts to ban terminating a pregnancy based on a diagnosis of Down syndrome or other fetal disability.

The immediate focus is on defending a 2017 Ohio law on fetal abnormalities, part of a new front in the abortion wars driven by conservative states enacting piecemeal restrictions on the procedure. The 6th Circuit U.S. Court of Appeals on Wednesday is due to hear arguments on whether Ohio’s law can take effect after it was frozen by a district court two years ago. Four other states have enacted similar laws, and five are weighing doing so.

Anti-abortion activists are hoping that at least one of these laws, most of which have been frozen by lower courts, will provide a test case for the Supreme Court to revisit abortion rights. They’re also trying to take the fetal disability fight beyond the courtroom and use discrimination and human rights arguments to win over voters who don’t support more sweeping bans, arguing the policy will protect society’s most vulnerable and prevent a return to eugenics.

‘I think it appeals to a wider audience of people who don’t say, ‘I’m always pro-life or I’m always pro-choice,’’ said Denise Harle, a litigator for the conservative advocacy group Alliance Defending Freedom.

But the debate is splitting the disability rights community, with some advocates questioning if efforts to raise awareness about Down syndrome could somehow be coopted to swing an explosive political debate.

The abortion laws ‘distract us from understanding more about Down syndrome,’ said Frank Stephens, a disability advocate, athlete and actor who has Down syndrome.

The issue has gained prominence with the rise in prenatal screening, which has resulted in higher pregnancy termination rates for Down syndrome; Iceland, for example, now has only a few children born each year with the condition.

Still, Stephens said he doesn’t want the government making life-or-death decisions about fetuses that might have disabilities.

‘If someone is going to choose life or death for people like me, I would rather take my chances with well-informed parents,’ Stephens said.

Other activists with Down syndrome, such as Katie Shaw, have partnered with anti-abortion groups to lobby state governments in favor of the bans. Shaw was a prominent advocate for Indiana’s disability abortion ban that then-Gov. Mike Pence signed in 2016.

Some faith-based groups such as Joni and Friends, a Christian ministry focused on the disability community, argue there’s a natural intersection between disability rights and abortion law, and that the bans help to ‘bring out the humanity of the pre-born.’

But many don’t want to be dragged into the abortion fight.

‘I think the folks pushing these bans are using the disability community as pawns,’ said Robyn Powell, an attorney and researcher at the Lurie Institute for Disability Policy at Brandeis University — who has a disability herself. ‘The same people passing these bans have shown no commitment to helping people with disabilities.’

Disability-focused abortion bans are already on the books in five states: Indiana, Ohio, North Dakota, Louisiana and Kentucky. The laws in Indiana and Ohio have been blocked by courts for violating constitutional protections for abortion access, while Louisiana and Kentucky’s law have so far survived legal challenges, and North Dakota hasn’t been sued. Last year, Pennsylvania Gov. Tom Wolf vetoed a similar proposal.

The crusade for such laws shows no sign of slowing. In the first two months of this year alone, similar bans were proposed in Florida, Maryland, Mississippi, New Hampshire and West Virginia.

Conservative legal experts and advocacy groups see encouragement for Supreme Court review of the policy in a concurring opinion Justice Clarence Thomas wrote last summer, in which he said that allowing abortions ‘based solely on the race, sex, or disability of an unborn child … would constitutionalize the views of the 20th-century eugenics movement.’

Melanie Israel, a researcher with the conservative think tank Heritage Foundation who focuses on abortion issues, said Thomas’ opinion ‘has given states their marching orders.’

Defenders of disability bans argue the policy doesn’t undercut Roe v. Wade, the landmark 1973 Supreme Court ruling that guaranteed abortion rights nationwide.

Michael McHale, an attorney with the anti-abortion law firm Thomas More Society, points to a line in the original Roe decision where the court’s majority said they didn’t agree that a woman is ‘entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.’

‘We argue that the state can draw a line and restrict abortion for a particular reason, when it looks like the reason is a type of eugenics,’ McHale said. ‘This ensures that doctors are not engaging in eugenics or even appearing to condone eugenics.’

The Trump administration’s Justice Department made a similar case in January, saying in a ‘friend of the court’ brief that Ohio’s law ‘protects individuals with disabilities from prejudice and indifference and the medical profession from harm to its integrity and reputation.’

The American Civil Liberties Union, which is challenging Ohio’s law on behalf of abortion providers in the state, disagrees.

‘States are not allowed to prohibit anyone from making the ultimate decision whether or not to continue a pregnancy prior to viability,’ said Alexa Kolbi-Molinas, a senior staff attorney with the ACLU’s Reproductive Freedom Project, who will argue the case before the 6th Circuit.

Kolbi-Molina notes that under Ohio’s law, doctors can be charged with a crime for performing an abortion even if a patient doesn’t disclose that a Down syndrome diagnosis is the reason she wants the procedure — simply seeing medical records with a fetal diagnosis would be sufficient.

McHale and other supporters of the policy say women could just find another abortion provider who’s not aware of their medical history, and can sue if finding another doctor is too burdensome — but those remedies could be difficult and time-consuming for patients, especially in states that have just one abortion clinic.

The laws ‘could end open and honest discussions between women and their doctors,’ Kolbi-Molina said. ‘And physicians will feel similarly chilled.’”