Jessie Hill, an attorney for the ACLU of Ohio, argued that the law seeks unconstitutionally to take “the ultimate decision” on abortion away from the woman. Benjamin Flowers, Ohio's solicitor general, said it seeks to prevent abortions that target and discriminate against those with Down syndrome, which would send them a message that people including some medical providers “do not think people like you are as valuable as others.”
The case is viewed as pivotal in the national debate over the procedure. The 6th U.S. Circuit Court of Appeals heard the arguments in a rare full-court hearing before 15 judges on a court that has moved rightward in recent years with Republican President Donald Trump making six appointments.
Attorneys for the government contend in legal filings that the sidelined 2017 law does not infringe on a woman's constitutional rights — because it “does not prohibit any abortions at all.” Judge Raymond Kethledge, an appointee of Republican President George W. Bush, indicated agreement with the government in his questions, suggesting that the Ohio law “strikes a balance between two extremes.” Other judges questioned whether it stands up under existing law on abortion and whether it encourages women to mislead their doctors.
The Ohio law prohibits physicians from performing an abortion if they're aware that a diagnosis of Down syndrome, or the possibility, is influencing the decision. They could face a fourth-degree felony charge, be stripped of their medical license, and be held liable for legal damages. The pregnant woman faces no criminal liability under the law.
This and similar proposals around the country have triggered emotional debate over women’s rights, parental love, and the trust between doctor and patient. Hill said the law would “cut off communication between a woman and her doctor."
Judge Jeffrey Sutton, another George W. Bush appointee, countered: “We don't want our doctors knowingly doing selective abortions.” The Trump Justice Department took the state of Ohio's side in the case in January, writing, “Nothing in Ohio’s law creates a substantial obstacle to women obtaining an abortion."
Justice Department attorney Alexander Maugeri told the judges Wednesday that the “Ohio law serves an important purpose” and lets people with Down syndrome know they “have lives that are worth living.”
Opponents call the law an illegal “reason ban.” They say it undercuts the woman's independent decision-making by attempting to get into her mind, or prevent her from speaking freely with her doctor, as she makes an abortion decision.
Wednesday's high-stakes hearing follows two earlier decisions in which a federal judge and a three-judge panel ruled the law is likely unconstitutional. It has been on hold since it was enacted. In another of the Ohio case's legal twists, a group of mothers whose children have Down syndrome has sided with the ACLU of Ohio, Preterm-Cleveland and other abortion providers who brought the suit. They argue the law — dubbed the “Ohio Down Syndrome Non-Discrimination Act" — actually perpetuates discrimination against their children by singling out their genetic anomaly over others.
Down syndrome is a genetic disorder that can cause a variety of physical and mental disabilities. It occurs in about one in 700 babies born in the U.S. each year, or about 6,000 annually.
Mike Gonidakis, president of Ohio Right to Life, the state's oldest and largest anti-abortion group, said earlier that, legally, the Down syndrome law is not an outright ban on abortion — since the prohibition depends on the doctor's knowledge of the diagnosis.
It's unclear whether, if that argument should prevail and the law is upheld, what would be the effect of an abortion ban that “bans no abortions.” A legislative backer said the idea is to make it impossible for a woman to find a doctor willing to abort a pregnancy in which Down syndrome is a possibility.
“I'm of the mind that it certainly does prevent abortions,” said state Rep. Candice Keller, a Republican abortion opponent from Middletown. The appellate judges didn't give a timetable for a ruling. "We believe that the court is going to identify that this did not indeed fall outside the bounds of what we can and cannot do under the current Roe structure,” Gonidakis said, referring to the landmark 1973 Roe v. Wade case, which legalized abortion.
Carr Smyth reported from Columbus.
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