Today, the U.S. 6th Circuit Court of Appeals will hear Ohio’s Down Syndrome Non-Discrimination Act for the second time. This law would protect unborn children with a Down Syndrome diagnosis from the deadly discrimination of elective abortion, but it was blocked in a 2-1 decision by the court last fall. The Down Syndrome Non-Discrimination Act was originally signed into law in 2017 but was challenged in court by the ACLU and Pre-Term, an Ohio abortion facility, shortly after.
However, that is not the end of the story. After the law was blocked by the court’s decision, pro-life Attorney General Dave Yost filed a petition for an en banc review of the 6th Circuit Court's ruling of the Down Syndrome Non-Discrimination Act, asking the entire panel to weigh in on the justice of the court's previous decision. The en banc review was granted and hearings began today.
We have reason to be optimistic about this second chance! The 6th Circuit Court similarly held an en banc hearing on Ohio Right to Life’s defunding Planned Parenthood just last spring. The law had been held unconstitutional by a three-judge panel, but ultimately it was upheld in the en banc review. We are optimistic that this same full panel of judges will affirm the constitutionality of the Down Syndrome Non-Discrimination Act as well. This would be a huge win for the cause of life in Ohio and beyond: a federal court affirming what we already know- that discriminatory abortions have no place in Ohio- could positively impact other states’ legislative protections for people with Down Syndrome.
There are judges who understand the importance of non-discriminatory legal protections. In his dissent on a U.S. Supreme Court ruling in a similar case from Indiana, Justice Clarence Thomas said that Indiana’s law and “other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Judge Alice Batchelder, in her dissent on the 6th Circuit’s initial 2-1 ruling, cited the Supreme Court’s 1927 ruling in Buck vs. Bell, which allowed for forced sterilization in order to prevent “socially inadequate offspring.”
Batchelder went on to write, “The eugenicist impulse on display in Buck, and amplified in its aftermath, is no mere relic of history. Today, many countries celebrate the use of abortion to cleanse their populations of babies whom some would view—ignorantly—as sapping the strength of society."
We are hopeful that with today’s en banc review, the court will reverse its earlier decision and end the fatal discrimination of abortion to continue targeting some of the most vulnerable unborn, those with disabilities. In the U.S., between 60-90% of unborn children with a Down Syndrome diagnosis are aborted. All Ohioans, regardless of a prenatal diagnosis, deserve the same right to life as anyone else.
To learn more about the Down Syndrome Non-Discrimination Act, see Ohio Right to Life’s testimony in favor of the bill from 2017 here.