A judge permanently blocked a similar law in Indiana.
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Ohio state Senators passed a bill on Wednesday that would ban abortions for pregnant women who've had a prenatal test indicating Down syndrome or a diagnosis of the condition—even if Down syndrome is only one factor in a woman's decision to terminate. The bill would not only criminalize doctors, but would also restrict abortion access as early as the first trimester, in conflict with Roe v. Wade. It passed by a vote of 20 to 12 and was introduced in the House on Thursday. (The House passed a similar bill on November 1 by a vote of 64 to 31, which indicates that the bill will land on the governor's desk.) Ohio governor John Kasich told CNN in 2015 that he would sign a ban on abortion in cases of Down syndrome.
The bill, SB 164, specifies that if a physician performs or attempts to perform an abortion on a woman whose fetus has or may have Down syndrome, the doctor would face a fourth-degree felony charge and, if convicted, would lose their license to practice medicine in Ohio. As of March, the state already restricts abortions at 20 weeks postfertilization; this bill would ban abortions at any point in pregnancy if testing suggests Down syndrome. The National Down Syndrome Society says testing can be done as early as nine weeks.
"SB 164 is the latest in a long, and apparently unending, list of bills in Ohio and across the nation that criminalize abortion," said Gary Daniels, chief lobbyist for the American Civil Liberties Union of Ohio, in a press release earlier this month. "Ohioans have grown weary of politicians substituting their judgment for that of their constituents and these repeated attempts to restrict their rights."
"The life of every child is precious, regardless of disability. Every child, no matter the circumstance, has the right to life," LaRose, the bill's chief sponsor, said earlier this year in a press release. "This legislation will protect the lives of unborn children with disabilities, valuing them as equal members of society."
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But abortion bans based on women's motives interfere with medical care. "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," Mark DeFrancesco, former president of the American Congress of Obstetricians and Gynecologists, said in a statement last year about motivation-based legislation.
He added that such restrictions lead to unsafe abortions: "Targeting and restricting any medical procedures in this way is simply bad medicine. Research and experience have shown that where abortion is illegal or highly restricted, women resort to desperate, dangerous means to end an unwanted pregnancies, including self-inflicted trauma, consumption of chemicals, self-medication, and even unqualified, untrained and likely unsafe abortion providers."
Meanwhile, doctors would be in trouble even if a woman isn't seeking an abortion solely on the basis of a prenatal Down syndrome diagnosis. "Patients may not want to risk the freedom of their trusted physicians; after all, prison awaits doctors who perform abortions where Down syndrome is a factor, no matter how big or small," Daniels said in the aforementioned statement. If the bill is signed into law, it could make doctors think twice about offering prenatal testing.
Despite these controversies, a few states have attempted to take similar actions. In March 2013, North Dakota governor Jack Dalrymple approved legislation that banned abortion based on sex selection and genetic defects.
In March 2016, then-Governor Mike Pence of Indiana signed a law that put several restrictions on abortions. (Pence, of course, is now our Vice President.) The legislation prevented abortions based on sex, race, ancestry, national origin, or the diagnosis of an abnormality or disability. But US District Judge Tanya Walton Pratt temporarily banned the law from going into effect last summer and permanently blocked the law in September. Pratt wrote that the legislation restricts a woman's right to abortion before a fetus is viable outside the womb—a right established under Roe v. Wade—and is thereby unconstitutional.
If the Ohio law passes, it will likely be disputed in court, the ACLU says.
Update 11/17/17: This story has been updated to reflect votes in the Ohio House and Senate on bills to ban abortion in the cases of Down syndrome and Governor Kasich's comments on a similar ban proposed in 2015.
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