Down syndrome-associated abortion is now illegal in Ohio — experts say the law is 'blatantly unconstitutional'

Jennifer Gerson Uffalussy
Contributing Writer
Activists protest the passing earlier this month of an Ohio law banning abortions in cases of a Down syndrome diagnosis. The law was signed on Dec. 22, 2017, by Gov. John Kasich. (Photo: AP)

Ohio’s Republican Gov. John Kasich signed off on his 20th anti-abortion law since taking office in 2010. The bill signed into law by Kasich, H.B. 214, now levies a charge of a fourth-degree felony — punishable with up to 18 months of prison time — on any physician who performs an abortion on a patient knowing of, or even expressing concerns regarding, a Down syndrome diagnosis.

While supporters of the bill claim that it is meant to prevent discrimination against those with Down syndrome, legal experts, pro-choice advocates, and members of the Down syndrome community say it does anything but.

Gabriel Mann, the communications director for NARAL Pro-Choice Ohio, explains that under Kasich, Ohio has lost half of its abortion clinics.

With this bill, “When a woman gets a Downs syndrome diagnosis, the last thing she needs is John Kasich telling her what’s right for her family, and that’s exactly what this bill will do,” Mann tells Yahoo Lifestyle.

Mann adds, H.B. 214 is not only “consistent with the other anti-abortion legislation Kasich has signed in the past,” but “does nothing to support families taking care of loved ones with Downs. Republicans refused amendments on the bill to help families guarantee access to Medicaid, special education funding, or provide direct financial assistance for families raising children with Downs. This bill just is a means to force abortion providers out of business and to end safe and legal abortion in Ohio. … This would force doctors to stop providing safe and legal abortion care because it threatens them with charges of a fourth-degree felony for a situation not under their control. It would be based on what intent the woman has, and then applies that felony charge to the doctor. It’s very severe step they are taking — and it’s blatantly unconstitutional, violates Roe, violated Casey, and is part of Kasich’s strategy of, just one piece at a time, trying to eliminate abortion access.”

Gary Daniels, chief lobbyist for the ACLU of Ohio, explains that H.B. 214 is part of a larger strategy on behalf of Kasich and other anti-choice activist lawmakers to find their way before the Supreme Court in an attempt to see Roe v. Wade overturned altogether.

“The Supreme Court is changing, there is a new president, older justices are retiring — the strategy is let’s get as many anti-choice bills through legislatures around the country including here in Ohio and let them work their way up to the Supreme Court of the United States and become an invitation to overturn Roe v. Wade and all the other decisions affirming Roe v. Wade. That’s their long game here — to get before the Supreme Court,” Daniels explains to Yahoo Lifestyle.

That said, Daniels notes the lower courts “don’t seem that interested in entertaining these bills seriously. This bill totally goes against the current court jurisprudence on reproductive rights. This Downs bill — and other states have bills kicking around on other genetic abnormalities — all share that courts keep striking them down all around the country and ironically, build up better case law for pro-choice advocates around the country.”

Daniels explains that the Supreme Court has made it clear that through the first and second trimester are when women have “an almost unfettered ability to have an abortion.” Thus, he says, bills like this one just signed by Kasich amount to a “Hail Mary pass — with the hope that the Supreme Court will be there on the other side to receive the Hail Mary pass.”

Yet, he says, “Downs bills, so-called ‘heartbeat bills,’ procedure bans, abortion bans before a certain date — they’re all the same. This is really no more complicated than that the Supreme Court has drawn a red line saying: ‘After this point, you can regulate abortion and before this point, you better have a really great reason as to why you’re doing this.’ And Down syndrome doesn’t make the cut, heartbeat bills don’t make the cut, procedure bans don’t make the cut. The Supreme Court hasn’t really found anything other than health and safety regulations relevant to impacting a woman’s ability to have an abortion.”

The new law, however, is “blatantly unconstitutional,” Daniels says, as it “talks about not being able to get an abortion if test results indicate Down, if you get a prenatal diagnosis of Down, or if a woman has any other reason to believe that a child has Down. You could be a pregnant woman out there and under the misconception that Down is wholly genetic, and that’s not true. You could say you consulted your astrologer, watched a documentary — there could be lots of reasons why women seek abortion, but if they ever use the magic words, ‘I think there might be Down,’ at that point, it becomes an illegal abortion.”

Consequently, Daniels says, “a patient who doesn’t want to get their physician in legal trouble or a doctor trying to avoid legal trouble” might result in a fettered patient-provider relationship at a time “when the lines of communication should be as open as possible. Given a pregnancy and a doctor’s role, the ability for a patient to speak frankly with a doctor is what’s at stake here. What you’re going to be seeing is much less communication between all parties involved, and that’s no good for someone getting medical care.”

Emily Chesnut is a mother of four children living in Ohio — and one of those children has Down syndrome. Chesnut is against H.B. 214 and says that what frustrates her is, “[Ohio lawmakers] are consistently chipping away at things that would help” in the case of Nora, her 6-year-old daughter with Down syndrome.

When Chesnut was 20 weeks pregnant, she found out that one of the twins she was carrying appeared to have a heart defect. The only way the condition could be diagnosed absolutely is through amniocentesis, which Chesnut declined because of the risks that the procedure carries.

“For our family, it wasn’t going to change the outcome of the pregnancy. My personal decision between me and my husband was that termination was not an option,” Chesnut tells Yahoo Lifestyle. “But I was married, we both had jobs, we were in a good place. Regardless of any diagnosis given, our choices would not have changed. But I recognize my very privileged background, and that was our family planning — we wanted more children.”

Which is why Chesnut finds herself so discouraged by H.B. 214.

“They say, ‘Well, every child with Down must be born but we’re not going to help you — you’re on your own now. If you say that, then you’re just pro-birth. We need funding that would help with education and jobs for people with Down, for the support services that Nora gets now. She is 6 and in first grade and it’s funded services that support her. What Nora needs is long-term,” Chesnut says.

“Individuals with Down,” she continues, “their life expectancy used to be 25, but now it’s 60, and I imagine Nora will live long beyond 60. I need to worry about her housing, her learning independence now to get the skills that she needs for when I cannot help her. I need funding that will help our family be more successful and Nora be more independent. … Individuals with Down have higher rates of heart issues, so we need Medicare funding too. There is a medical link to a need for ongoing specialists that she will need; we will need to see whether she will need to have another heart surgery in the future or if longer-term medical issues arise.”

Chesnut concludes, “Just saying we need more babies with Down syndrome born doesn’t help us. We need services and support and integration in the community. But this bill is just another way to push the anti-abortion agenda, because what parents need is more information and trust to talk about their options. And I hope if termination were a choice they were considering, they would reach out and meet families with Down. But it’s a woman’s choice and this bill is just putting another hurdle in place when women are trying to make reproductive decisions for themselves.”

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