The disputed law is among nearly two dozen abortion restrictions that Ohio has enacted under the most recent two administrations. A ban on abortions after a fetal heartbeat is detected, twice vetoed by then-Gov. John Kasich but signed into law by fellow Republican Gov. Mike DeWine, is also on hold amid a legal challenge.
Government attorneys argue that Ohio's Down syndrome law doesn't actually outlaw any abortions, it only places restrictions on providers. Taking up an argument used by the law's supporters, including the abortion-opposing Ohio Right to Life, federal attorneys also told the court the law protects against discrimination based on disability, sticking with the principle established in other laws, such as the Americans for Disabilities Act.
The full 6th U.S. Circuit Court of Appeals has agreed to rehear the case after a three-judge panel agreed with a lower court that the 2017 law was likely unconstitutional. That left in place a federal judge's earlier order placing enforcement of the law on hold.
The American Civil Liberties Union sued the Ohio Department of Health, the state medical board and county prosecutors to overturn the law on behalf of Planned Parenthood and several abortion providers.
The law specifically would outlaw abortions in cases where there is a positive test result or prenatal diagnosis indicating Down syndrome. Physicians who perform such an abortion could be charged with a fourth-degree felony, stripped of their medical license and held liable for legal damages under the law.
A pregnant woman would face no criminal liability. Abortion rights groups say the law falls into a category of restrictions called “reason bans,” which they argue attempt to get into the mind of a pregnant woman as she decides whether to continue or end a pregnancy.
Ohio joins Indiana, Louisiana, North Dakota and Kentucky among states that have enacted abortion restrictions in cases of a fetal Down syndrome diagnosis. Four of the five enacted laws have drawn legal challenges, and a similar proposal sent in November to Pennsylvania's governor was vetoed.