According to the article below in the Cincinnati Enquirer (click on screenshot), a three-judge panel of the federal Sixth Circuit Court of Appeals (not the whole court) overturned by a vote of 2-1 a law passed in 2017 that blocked any abortions of fetuses diagnosed with Down syndrome, regardless of term. The State is appealing the decision to the full court. I’m not sure how a subset of the court has the right to overturn laws, but what do I know?
You can see the entire bill here. It stipulates the following:
No person shall purposely perform or induce or attempt to perform or induce 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 .
(C) Whoever violates division (B) of this section is guilty of performing or attempting to perform an abortion that was being sought because of Down syndrome, a felony of the fourth degree .
(D) The state medical board shall revoke a physician’s license to practice medicine in this state if the physician violates division (B) of this section.
(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. In any action under this division, the court also may award any injunctive or other equitable relief that the court considers appropriate.
(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.
Note that the woman herself isn’t punished—only the physician, which is weird but certainly effective in stopping abortion of Down-syndrome babies. As far as I can see, the law was never implemented, as it was blocked by a single Federal judge until the three-panel decision a few days ago. (The panel has two Democratic judges and one Republican one; I’m guessing that the Republican was the dissenting vote.)
This bill is almost certainly unconstitutional, as it goes even father than Roe v. Wade, which prohibited states from banning abortions during the first trimester, but allowed them to restrict abortions somewhat during the second trimester and to prohibit them entirely during the third trimester. This bill doesn’t specify which trimester, but appears to prohibit abortions at any time if the woman knows that the fetus has Down syndrome. (That syndrome, by the way, comes from the acquisition in the fetus of an extra 21st chromosome, so the genome has three copies instead of two.)
What the lawmakers intended was to prevent “discrimination” against fetuses that had Down syndrome, because it constituted “social bias against a vulnerable group”. Presumably that rationale could be used to ban abortions if the fetus had any condition that would allow it to live if brought to term, regardless of the quality of that life. But such restrictions make little sense if healthy fetuses are allowed to be aborted, and so the law violates Roe v. Wade.
For a condition like Down syndrome, one should, in my view, allow abortion right up to birth, for it’s the mother (and father) who would have to take care of a child who, while it could live a substantial time, is also a substantial burden. In fact, I think that all abortions should be legal up to birth, even if the fetus could be viable if birth were induced or the fetus removed from the mother prematurely. But I digress.
As states are busy trying to restrict abortion any way they can, using “minority group discrimination” to prevent early-term abortions is not a strategy that will fly. In fact, the law was blocked early on by that one federal judge because “of the likelihood that if there were a full trial, the abortion providers would prevail.”
But we all know that the present Supreme Court —a very conservative one—will at some point revisit Roe v. Wade, and although the Supreme Court has a respect for precedent, it’s not an absolute respect. Further, if Ruth Bader Ginsburg leaves the court during a Republican Presidency, all bets are off.