Last month in Ohio, a bill was signed into law that, as of March 1, makes it a felony to perform an abortion on a woman if it is being done because the fetus has Down syndrome. The law elicited a minimal amount of ink, and that’s understandable, because it seems unlikely to withstand a legal challenge and, if allowed to stand, unlikely to be enforced. A nearly identical law passed in Indiana in 2016 has been blocked; and while a similar law, passed in North Dakota in 2013, has not, no one has ever been charged.
It’s easy to ignore these laws, but I think it would be a mistake for a number of reasons. First, they are not a fluke: Three times is a trend. This is a coordinated effort by groups who oppose any form of abortion, and in all probability there will be more laws to come and other efforts to target the practice of prenatal diagnosis.
Prenatal diagnosis has been on the radar of the anti-abortion movement for a while now. This became clear in 2012, when abortion opponent and Republican presidential primary candidate Rick Santorum suggested that insurers should not have to pay for amniocentesis (a procedure used to test the DNA of a fetus for chromosome abnormalities and other genetic conditions) because the test results “more often than not” lead to abortion. The response from the medical community focused almost entirely on the glaring error in his sentence — the vast majority of amniocentesis results are reassuring, and termination after the procedure is quite rare — and there was little attention paid to the essential argument, which was that reproductive decision-making that includes abortion as an option isn’t a part of medical care, and that insurers shouldn’t have to pay for it. How this could become a real issue became abundantly clear after the Supreme Court decision in the Hobby Lobby case in 2013, in which employers were allowed to refuse to pay for health policies that covered contraceptives, if contraception violated their religious beliefs.
Santorum’s argument against amniocentesis, in light of Hobby Lobby, is a genuine threat to a woman’s right to this or other forms of prenatal testing. For those of us who believe that genetic testing is a routine part of prenatal care and should be available to all women if they want it, laws like the one just passed in Ohio might be viewed as an early skirmish in a developing battle over whether or not using technology to control the risk of giving birth to a child with a genetic condition or disease is medical care or a luxury item.
As for the bill in Ohio, it is unlikely that the groups who wrote it believed anyone would be prosecuted under the law. They may have envisioned the law as a public relations initiative, playing a role in shaping how the public sees termination after a prenatal diagnosis. Polling suggests that a slim majority of people are sympathetic to individuals who abort when a fetus will be cognitively impaired; behavior suggests that most people prefer to have the option for themselves. But when it happens, it is always an uncomfortable, sad conversation, and making it illegal is obviously heavily stigmatizing. That, I would argue, is the point.
Furthermore, the law does not have to be enforced to have an impact on the care that people receive. The law — a felony charge — penalizes medical professionals, and it is likely to have a chilling effect on a doctor’s willingness to even discuss abortion. In fact, it is counseling that is most at risk. If a woman requests an abortion, no one can prove what her motivation is, but if a doctor or genetic counselor introduces the option of termination after test results come back positive for Down syndrome, there is a transparent suggestion of cause and effect. What’s particularly distressing about this is that advocates for people with Down syndrome stress the importance of good, balanced counseling. And there is no reason to assume that counseling will lead inevitably to termination; in fact, it is reasonable to imagine that some women will terminate out of fear of the unknown, when they might have chosen otherwise with better support and information.
Perhaps the most frustrating thing about laws like the one passed in Ohio is that the effect of it, whatever that is, will fall only on the most vulnerable: the poor, the young, the uneducated. We all know that anyone with enough money or the right connections will be able to circumvent this law with winks and nods. As I have said before in this magazine, increasing barriers to access doesn’t protect individuals with genetic conditions or genetic disease. Instead, it increases the likelihood that they will be born into families with fewer resources.