Ohio’s Down Syndrome Abortion Bill: Avoiding the Issue

While critical of a bill filed in the Ohio legislature, Ohio does have a great state flag

While critical of a bill filed in the Ohio legislature, Ohio does have a great state flag

For the second time, an Ohio state representative has introduced a bill to ban abortion when the stated reason is a prenatal test result for Down syndrome. The debate about the bill, and the measure itself, avoid the issue about Down syndrome selective abortion. 

Avoiding the issue of discrimination

Slate’s Christina Cauterucci critiqued the Ohio bill. Her column begins with a very fair recounting of the disability rights critique against selective abortion. But, her criticism then boils down to a dispute over whether the state has the right to impose restrictions on abortion access versus the constitutional right recognized since Roe v. Wade that women have to abortion.

While Ms. Cauterucci can base her critique however she wants–it’s her column–to me, it seems to avoid the issue that is the stated basis of the Ohio bill.

State Senator Frank LaRose introduced this latest version of the bill. In a local news segment, he explained his reason for introducing the bill:

“Discriminating against a certain group of people because of a disability and saying that their lives are less valuable is something that is very concerning to many of us.”

Senator LaRose is not alone in his concern about condition-specific selective abortion expressing discrimination against the condition. ACOG’s own ethics committee has said it is unethical to selectively abort because it expresses discrimination when the condition being selected against is sex.

Ms. Cauterucci’s critique, like the Indiana Federal decision ruling that state’s Down syndrome selective abortion ban unconstitutional did, avoids the issue of discrimination. One can hold that a woman’s right to an abortion should take priority. One can critique the Ohio bill. But, given the stated reason is anti-discrimination, and ACOG recognizes that selective abortion expresses discrimination against the tested-for condition, that issue should also be addressed by critics of these measures. So far, it hasn’t been.

Avoiding the issue of addressing Down syndrome selective abortion

As I, myself, have critiqued, these Down syndrome selection bans are little more than “rah-rah” measures for pro-life groups to add to their fundraising letters. I say that so dismissively because the net effect these so-called bans is slim to none in actually reducing the number of Down syndrome selection births, the claimed goal of the legislation. In North Dakota, the one state that has had a ban in effect now for years, the sole abortion provider says it has had no effect on their operations.

The same can be expected with the Ohio measure. While it makes a provider liable both criminally and civilly for knowingly performing a Down syndrome selection abortion, there is no accompanying appropriation to fund the sting operations that would be necessary to catch violating providers. Admittedly, my critique may be premature for the Ohio bill: perhaps funds will be appropriated and covert sting operations will be conducted by a state law enforcement agency or medical licensing board, but I wouldn’t hold my breath awaiting such measures.

As a result, a lot of sturm und drang will be generated by this bill, by pro-life and pro-choice advocates alike, regardless of whether it is enacted into law, and as Shakespeare wrote, it will in the end signifying nothing.

Too bad, because it avoids the issue that actually both groups would support, albeit for separate reasons.

Avoiding an area of common ground

If the stated concern is that Down syndrome selective abortions are discriminatory and reinforce discriminatory attitudes towards those with Down syndrome, both sides could (and have) come together to support measures to minimize discrimination.

Ohio, along with 18 other states now (Maine, Washington, and Kansas being the most recent additions), has passed its version of the Down Syndrome Information Act. The act requires that providers deliver to patients educational materials about Down syndrome and local support organizations. Pro-lifers support these measures in the hopes that women, when shown what a life can be like with Down syndrome, may reconsider and choose to continue their pregnancy. Pro-choice advocates support these measures because the recommended information is what ACOG guidelines recommend be provided in order to respect the woman’s autonomy so that she may make an informed choice of whether to continue or terminate her pregnancy.

However, no appropriation has been made to fund the distribution of the educational resources for providers to deliver to patients; no auditing has been performed by the state Cabinet for Health or the medical licensure board; and, no legal action has been brought to require compliance with practices who, for the most part, are either ignorant or choose to ignore the Act’s (and ACOG’s) requirements.

Both sides could, instead of engaging in the same talking points about abortion, actually do something together to reduce the discriminatory effects of how prenatal testing is currently being administered.

But, I’m not holding my breath on that, either.

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