An Ohio law prohibiting doctors from performing abortions of foetuses diagnosed with Down’s syndrome has been upheld by a US court, setting up a possible showdown at the Supreme Court.
Judges on the federal appeals court in Cincinnati were divided but narrowly ruled to reverse two earlier decisions blocking enforcement of the 2017 law, which had ruled that it was unconstitutional.
Abortion has long been a wedge issue in America’s culture wars. The Ohio law and similar bills in other states have reignited debates about women’s rights and the relationship between doctors and patients.
Another federal appeals court ruled in January that a similar law in Arkansas was unconstitutional. The split, experts say, could prompt the Supreme Court, which has a 6-3 conservative majority, to take up the issue.
The law raises the prospect of 18-month prison sentences for doctors who perform abortions while aware that a Down’s syndrome diagnosis, or the possibility of one, is influencing the decision. Violators could also lose their medical licence. The legislation does not criminalise the actions of pregnant women, however.
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The majority on the 16-member court, which has recently shifted to the right with six appointments by Donald Trump, argued that the law was not designed to save foetuses but to protect the Down’s syndrome community from stigma, women from coerced abortions and the medical community from unethical doctors.
Dissenting judges, however, said that it amounted to “the long arm of the state — wielding the threat of a class-four felony — forcefully reaching into a profoundly intimate conversation between doctor and patient”.
The American Civil Liberties Union, representing abortion providers, sued Ohio’s health department, medical board and county prosecutors in 2018, arguing that the law infringed on the constitutional right to legal abortions carried out before the foetus can survive outside the womb.
Parents of children with Down’s syndrome also opposed the law, arguing that the disorder was being used as a veil for new abortion restrictions. The national anti-abortion group Susan B Anthony List, however, said that it made Ohio “a safe haven for unborn babies with Down’s syndrome”.
