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How Ohio Is Using Down Syndrome to Criminalize Abortion

The Ohio legislature could criminalize women for having basic conversations with their doctors.
The speaker's dais in the House Chamber of the Ohio State House.

The speaker's dais in the House Chamber of the Ohio State House. 

With all the intensity of focus on national politics—currently shifting from Trumpcare (which would arguably kill Americans) to the Trump Tax Plan (which would merely redistribute money to the most wealthy)—it's easy to overlook ongoing outrages at the state level. But when it comes to limiting reproductive rights, the main action is taking place in GOP legislatures around the country.

By February of this year, 168 anti-choice bills had already been introduced in various legislatures, many of them advancing quickly through the system. New laws in Texas and Kentucky have already been passed and struck down by federal judges. Now, Ohio Republicans are the latest group to seize on Down syndrome as a wedge issue in the fight against reproductive choice. Senate Bill 164 would make it a felony for doctors to knowingly perform an abortion after a prenatal diagnosis of Down syndrome.

A few things to make clear: I am the father of a 10-year-old with Down syndrome. Nobody has more concerns about the rights of people with Down syndrome than I do. Yet I stand unequivocally opposed to this bill. It will not help people with Down syndrome. Even assuming it survives legal challenge, it is unlikely to result in fewer abortions. What it will do, however, is criminalize speech between a woman and her doctor. It will intensify the very stigma that drives so many people to terminate otherwise wanted pregnancies after they receive a prenatal diagnosis.

Here's the key passage of the law:

No person shall purposely perform or induce or attempt an abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of any of the following: (1) A test result indicating Down syndrome in an unborn child; (2) A prenatal diagnosis of Down syndrome in an unborn child; (3) Any other reason to believe that an unborn child has Down syndrome. Whoever violates this section is guilty of ... a felony of the fourth degree.

Notice how this law doesn't hinge on the act of performing an abortion, but rather on whether there is "knowledge" of motivation for abortion. If the doctor is aware of a prenatal diagnosis as motivation, an abortion would be a felony. Without awareness, even if that was the woman's motivation, an abortion could safely proceed. Therefore, the bill functions only to silence women after they receive their prenatal diagnosis—or, even worse, early pregnancy screening (note that such screenings are not accurate enough to be diagnostic)—lest a doctor begin to suspect their motivations and refuse to terminate a pregnancy.

The bill is unlikely to result in fewer abortions. What it will do is criminalize speech between a woman and her doctor.

It's quite possible that federal judges will rule against this law, assuming it makes it through the legislature and the governor of Ohio signs it. Indiana passed a similar law that has just been ruled unconstitutional by the Seventh Circuit Court, though Indiana's attorney general vows to appeal the decision. Still, Down syndrome has emerged as a major front in the cultural divide around reproductive access, with similar attempts underway in North Dakota, Missouri, and Louisiana. The cynical use of my son's disability as a wedge issue hasn't made the world any better for him. Moreover, the issue of Down syndrome and prenatal testing, a space fraught with tension and complexity, is increasingly difficult to discuss thanks to these GOP efforts.

A few years ago, I really thought we were making progress on reframing our conversations around Down syndrome and prenatal testing. A loose national coalition of both pro-life and pro-choice parents, medical professionals, and self-advocates had come together under the umbrella of being "pro-information." We agreed that, whatever we personally thought about abortion, the first goal had to be to help medical professionals provide the best possible information about Down syndrome to expectant mothers. Too often, we knew, the words "Down syndrome" inspire fear based on outdated myths about the condition. We thought that we could work across party lines to fight the myths and let women make informed decisions.

This coalition cannot survive when states like Ohio use Down syndrome as a weapon against reproductive rights. If legislatures make it criminal even to speak about decisions and motivations, how can we urge doctors to help women navigate life as a parent of a child with a genetic condition? If women and doctors have to avoid the conversation for fear of criminal liability, fear and myth will win over information.

The Ohio GOP hopes to score points with anti-choice voters by passing a bill making it harder to have these vital conversations. It's got to stop. We need more and better dialogue around developmental disability, support needs, fighting stigma, and the role of good government in providing education, health care, housing, work, and more for people like my boy. We can't achieve this by criminalizing speech between women and their medical providers. It's long past time to depoliticize Down syndrome.