Groups Challenge Ohio Law Making Abortion a Felony

Alicia Ault

February 23, 2018

A host of organizations are challenging an Ohio law that would make it a felony for a physician to perform an abortion on a fetus that has been diagnosed with Down syndrome. The law goes into effect on March 23.

The American Civil Liberties Union (ACLU) filed suit on February 15 in the US District Court for the Southern District of Ohio on behalf of Preterm Cleveland, an abortion provider. The suit was joined by Planned Parenthood of Southwest Ohio, Planned Parenthood of Greater Ohio, and the Women's Medical Group Professional Corporation. The plaintiffs allege that the ban violates the constitutionally protected right to abortion and to privacy and that it constitutes government interference with personal health decisions.

"This law would undermine the relationship between doctors and patients, making it harder for a woman to have an honest and informed conversation with her healthcare provider," said Chrisse France, executive director for Preterm, an Ohio abortion provider and sexual health clinic, in a statement issued by the ACLU.

The law allows for the clinician who performs an abortion to be charged with a felony if he or she performs the procedure knowing that one reason for the woman's decision to terminate her pregnancy is that the fetus has Down syndrome, as determined on the basis of test results or on any other indication. The physician's license would be revoked, and he or she would be open to civil damages. The woman would face no punishment.

The American Congress of Obstetricians and Gynecologists would not comment directly on the new law, but referred Medscape Medical News to a 2016 statement by then-President Mark S. DeFrancesco, MD, MBA, on laws that seek to block abortion for a particular reason.

"These 'reason bans' represent gross interference in the patient-physician relationship, creating a system in which patients and physicians are forced to withhold information or outright lie in order to ensure access to care," said DeFrancesco.

"Decisions about reproductive health, including abortion care, are best made by a woman in honest, open, truthful consultation with the people she trusts, including her obstetrician-gynecologist — not a politician," he said. He noted that abortion should continue to be legal because that helps to keep it safe.

"Unreliable Data"

The National Down Syndrome Society (NDSS), which advocates for individuals with Down syndrome and their parents, would not directly address the Ohio law. But NDSS President and CEO Sara Hart Weir said that the organization is especially worried about testing.

"These noninvasive prenatal screening tests (NIPTs) for trisomy 21 are not even regulated by the US Food and Drug Administration. And women, even in the US, aren't receiving accurate, up-to-date information about Down syndrome from their healthcare providers," Weir told Medscape Medical News. "Currently, families are making important decisions with unreliable data from NIPTs," she said.

Weir noted that "children and adults with Down syndrome continue to exceed expectations — individuals with Down syndrome live independently, go to college, work in competitive jobs, get married, live to their full potential, and lead fulfilling lives."

In an opinion piece in the Cincinnati Enquirer that was written before the bill was signed by Gov. John Kasich (R-OH), Leesha Thrower, PhD, said the bill did nothing to help her child, who has Down syndrome, or other families with disabled children. If politicians cared about helping those with Down syndrome, they would not be debating abortion, she said.

Instead, "They should be debating a bill to guarantee affordable health insurance coverage for the barrage of testing children with Down syndrome need, for occupational therapy, speech therapy, sleep studies, x-rays for hips and necks, ear tubes and other medical care," Thrower wrote.

After the ACLU filed suit, Mike Gonidakis, president of Ohio Right to Life, issued a statement chiding the ACLU for its "blatant and continuous attacks on the dignity and sanctity of human life.

"It is a shame that an organization that claims to be the very biggest and best at defending victims of discrimination completely disregards the most vulnerable members of our society who are being discriminated against," added Gonidakis,

More States Considering Bans

Ohio is not the first state to attempt to ban abortions for genetic anomalies. The Guttmacher Institute, a nonprofit organization that supports reproductive rights, reports that North Dakota has such a law on the books. An Indiana law has been permanently enjoined and is thus not in effect, and Louisiana's law has been temporarily suspended while it is being challenged in court.

Oklahoma requires counseling on perinatal hospice services if an abortion is sought because of a lethal fetal abnormality, says the institute. Arizona also requires counseling about perinatal hospice services if an abortion is sought because of a lethal fetal abnormality, as well as counseling on outcomes for those living with the condition that the fetus is diagnosed with if the abortion is sought for a nonlethal fetal condition.

Kansas requires counseling on perinatal hospice services before all abortions.

Five other states — Illinois, Mississippi, Missouri, Oklahoma, and Utah — have introduced similar laws this year, according to Guttmacher.

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