6th and 8th circuits split over laws prohibiting an abortionist from performing an abortion if he knows that the woman’s reason is that she does not want a child with Down syndrome

By Dave Andrusko

As we noticed in a prior post today, pro-abortionists are (I believe) genuinely unnerved by passage of what one pro-life legislator called “discrimination-motivated abortions” and pro-abortionists label “trait-selection” laws. Both refer to abortions sought because the baby is the “wrong” sex, ethnicity, or because he/she has a genetic anomaly, most often Down syndrome.

Pro-abortionists worry the canopy of the Roe v. Wade/Doe v. Bolton legal umbrella cannot be opened wide enough to protect abortionists who knowingly abort a child because, for example, her mother does not want a baby born with Down syndrome. They believe fervently that it doesn’t matter whether she has informed the man that this is the reason she wants him to slay her baby. 

Bringing this to even greater prominence is a decision we’ve discussed several times this week. On Tuesday, the Sixth Circuit Court of Appeals reversed a preliminary injunction against Ohio’s Down Syndrome Non-Discrimination Act. H.B. 214 “prohibits a doctor from performing an abortion if that doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome,” as explained by Judge Alice M. Batchelder in her majority opinion. Then-Gov. John Kasich signed the Act into law in 2017. 

As NRL News Today has also written, there is now a split among circuit courts. The 6th Circuit is on one side, the 8th is on the other. 

As pro-life Arkansas Attorney General Leslie Rutledge wrote this week, last January, a three judge panel of the 8th Circuit “affirmed a lower court’s order that blocked Arkansas’s law prohibiting abortions that are performed solely on the basis of Down syndrome.” AG Rutledge’s petition for a writ of certiorari asks the U.S. Supreme Court to review the 8th Circuit’s decision against Arkansas’ Act 619, the “Down Syndrome Discrimination by Abortion Prohibition Act.”

Rutledge’s introduction spells out the ethical as well as legal underpinnings of her argument:

This case is about whether the Constitution enshrines a right to have an abortion solely to avoid having a child diagnosed with Down syndrome. The majority of the panel below agreed that cannot be true, but ultimately held that this Court’s precedent said otherwise. That conclusion threatens the very existence of people with Down syndrome in this country. And it sends an unmistakable message to people with Down syndrome that the Constitution, as interpreted by this Court, is indifferent to their survival. The Court should grant certiorari and reverse the decision below.

There is much more to discuss and we will do so next week.