The Ohio legislature is considering a bill that would ban an abortion because of a Down syndrome prenatal test result. But, there could be a disturbing unintended consequence if the bill becomes law.
The Ohio bill has received a lot of coverage, notably from the New York Times. It has also received its fair share of commentary, including posts from Kari Wagner-Peck, a mom wondering where the national Down syndrome advocacy organizations stand on the bill, to David Perry, a father criticizing the bill for driving a wedge between disability rights advocates and those who also support reproductive rights. Within a day of Perry’s column, tweets and emails to him proved his point.
The Ohio bill is similar to that of a law passed in 2013 by North Dakota. I reference my commentary on that law at the time it passed: on the substance of the law, on its constitutionality, and on its possible value. At the same time, the New York Times reported that not a single prosecution has begun under the North Dakota law in its two years of existence, and North Dakota’s lone abortion provider says it hasn’t changed its practice one iota. Therefore, I further reference my commentary on a similar Down syndrome abortion-ban bill filed in Indiana earlier this year, and how Down syndrome is simply being used by pro-life groups, but no real change is ever actually sought in the execution of these putative pro-life laws.
But, there is a key aspect of the Ohio bill that I haven’t seen anyone catch yet.
The Ohio bill is being promoted by Ohio Right To Life for the stated purpose of eliminating Down syndrome selective abortions. What the group fails to appreciate is that the way the bill is written, it may actually incentivize mothers to get a selective abortion in Ohio.
Under the law, anyone performing a Down syndrome selective abortion is guilty of a felony in the fourth degree–punishable by six to 18 months in prison. It also provides for a civil lawsuit being brought against the physician:
(E) Any physician who violates division (B) of this section is liable in a civil action for compensatory and exemplary damages and reasonable attorney’s fees to any person, or the representative of the estate of any person, who sustains injury, death, or loss to person or property as the result of the performance or inducement or the attempted performance or inducement of the abortion.
The Ohio bill then has real penalties for the provider who performs a Down syndrome selective abortion: the doctor can be imprisoned and sued, with the plaintiff also receiving attorney fees, and another provision makes it mandatory for the physician to lose his or her license to practice medicine in the state of Ohio. Stiff penalties.
But, then consider the section that immediately follows the one allowing for a lawsuit:
(F) A pregnant woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of division (B) of this section is not guilty of violating division (B) of this section or of attempting to commit, conspiring to commit, or complicity in committing a violation of division (B) of this section.
So, the woman who seeks out and has a Down syndrome selective abortion is expressly exempted from any culpability in the legislation. This paragraph, no doubt, was included so as to deflect the common criticism of pro-life measures that they would jail the mothers who have abortions. This provision makes clear that is not the case. But its inclusion in the law allows for a troubling scenario.
It excludes the mother from any liability for even “complicity in committing” a Down syndrome selective abortion.
Do you see how that could incentivize a Down syndrome selective abortion, when read with the provision allowing for a civil lawsuit?
A mom could get a prenatal test result for Down syndrome. Seek out a physician who believes the Ohio law is unconstitutional or violates a woman’s right to choose. Have the physician perform the selective abortion and make clear in her record that is why she is seeking an abortion. And, then, turn around and sue the doctor for compensatory and exemplary damages for the loss of companionship of her child who she aborted (!).
Or, let’s consider an even more nightmarish, but possibly more likely scenario:
A 40-year old woman has an abusive husband who comes home from a night out drinking and forces himself on her. She becomes pregnant. At her age, the chance of having a child with Down syndrome is about 1-in-85. Her unborn child does have Down syndrome, which she learns from a prenatal test report that is left as a voicemail that her husband hears. The couple’s other children are grown, but are having problems of their own finding steady work with bills that exceed their income. The husband learns about this law and now doesn’t see his wife’s pregnancy as an unwanted burden–he sees it as a lottery ticket. He forces her to get an abortion, and then engages an attorney to sue the doctor. Because, remember, “any physician who” performs a Down syndrome selective abortion “is liable in a civil action for compensatory and exemplary damages and reasonable attorney’s fees to any person, or the representative of the estate of any person”. The father, who forced himself on his wife and then forced her to have an abortion, is rewarded with a multi-million dollar judgment, all thanks to Ohio Right to Life’s law.
Even if passed, the Ohio bill will likely have the same impact as that of North Dakota’s: nothing. Women will either drive to neighboring states to have an abortion or simply lie if asked by their doctor why they are having an abortion. Moreover, it is highly unlikely that any funding will be appropriated for enforcement of the law itself.
But, the way the Ohio bill is currently written, it could incentivize some mothers or fathers to see a prenatal test for Down syndrome not as unexpected news, but as a multi-million dollar lawsuit.
I am not so much replying to the scenario painted here (this could be the script for a Hollywood movie) as I am to the previous: the Ohio bill and respons to that. This bill should not be seen as a new front in abortion wars (as the NYT puts it), but as a new front in disability rights. The repons however, Mr. Perry’s in particular, says the bill divides disability rights activists. He says either you are pro-choice or pro-life (or forced birth as he likes to put it). He polarizes the dabte with his words and reminds me of another man who said: you are either with us, or you are against us.
As a woman, pro-choice and feminist, free thinking spirit, I am not against a woman choosing IF she wants to be pregnant. I do oppose National screening programs that single out Down syndrome to enable selection. As a woman I am not an incubator of societal preferred descendants and my kids are not a choice but part of the human species. That is demeaning both to me and my children. Selective abortion pushes me into a societal unequal situation that could be compared to Asian women having female babies. I see the Ohio bill as an effort, not to ban abortion, but to send a message that all lives are valued equal. Yes, there may be some flaws in this particular bill, but that should be open for discussion. It is, after all, only the second one in the US and ‘childhood diseases’ are to be expected. I know for a fact that many, if not most, do not belong strictly to either pro-life or pro-choice side but find themselves somewhere in between and are open to discussion. I am driven by love for my children and passion to help create a better, more loving world. Being singled out and made into a ‘forced- birther’ doesn’t help discussion and IS driving a wedge. With this I would like to offer the peace pipe.
Renate–see the links to my commentary on the North Dakota law, particularly the last one on its value, and you’ll see I make much the same point you do. Unfortunately, the lack of enforcement makes my critique of the similar Indiana bill apply to the North Dakota law and would apply if Ohio passes this law and does nothing. Unfortunately, though, with abortion, there are many who take almost a racist standpoint to use a probably imprecise analogy. Whichever side you identify mostly with, pro-life or pro-choice, can result in ardent members of the opposing side to only consider you anti-their position and therefore they do not bother listening or responding to the substance of the point trying to be made. I call this “racist” for the analogy that regardless of the positions Martin Luther King, Jr. or Frederick Douglas, or any number of African-American civil rights activists were taking, a large swath of the public simply wrote them off because of their skin tone, without actually reflecting on and addressing the points they were making. I see that happening with the responses to Perry and Wagner-Peck’s posts.
Doesn’t seem at all “unintended.” On its face, the unilateral culpability structure creates a huge disincentive to the practicioner to knowingly terminate a fetus with known diagnosis of DS. Lawyers will whip up certifying statements and releases that, at least, document the patient’s ignorance of such a diagnosis or that “testing” has “confirmed” the fetus is non-Trisomy 21. The plaintiff in an action would have to show that the practicioner was aware of the diagnosis and proceeded despite that knowledge. Doesn’t mean someone wouldn’t try to “cash in,” as your scenario suggests, but in theory, the physician should be able to adequately document a reliance upon the patient’s formal, written statement. It would be interesting to know if a patient who falsifies the statement could then otherwise be held legally responsible under any general state or federal laws for falsifying /misrepresenting medical information that a healthcare provider must necessarily rely upon for competent and legally-compliant treatment planning.
Regardless, I don’t like where this divisive and alienating approach is headed. As to where the national DS advocacy groups are with comments…what are they supposed to do? As advocates for constituents with DS, of course they would like to support something which reinforces the base right of people with DS to EXIST despite the condition or diagnosis. But are they to do it by affirmatively supporting a diagnosis-specific law which implies it is perfectly understandable and remains okay to terminate a fetus with spina bifida, cerebral palsy, etc.? Where is there a constructive, tenable position in that? That said, the nationals do indeed need to step up and engage thoughtful people in this plainly difficult discussion and in a manner that supports the advocacy efforts of the broader disability rights movement.
Brian – a dad
Good points. The breadth of allowing “any person” to bring suit would allow those practitioners to be the subject of a lawsuit by a party, i.e. the parents, who were not complicit in obtaining the abortion. An amendment excluding parents would remove the financial incentive I discuss in the post. And, I agree with your final point that advocacy organizations, by definition, are to advocate for their members and when a bill that is receiving as much coverage and attention directly addresses their constituency, their silence is deafening.
Yes, their silence is deafening. Allowing routine tests aimed at enabling selection sends a message. Yes, I can decline testing but I still have to justify the choice that was forced upon me. That is demeaning both to me and my children. Where are the so-called advocacy groups? Where are the feminists who understand industry nor state have any business in our uteruses screening wanted off spring for worthiness? They went when Rote Zora went (a feminist group who understood that allowing genetic screening would increase pressure upon women). Hiding because no one wants to be dragged thru the mud to one side and made in to something that they are not.
well, the “any person” term IS burdened with restrictive qualification. That said, it does have the remaining potential for being more complicated if this language is in use in a state with an expanded definition of “personhood.” (meaning fetal, not corporate.)
~BL