CINCINNATI (CN) – Ohio cannot make it illegal to abort a fetus diagnosed with Down syndrome, a federal judge ruled Wednesday, saying the law violates fundamental constitutional rights established 45 years ago in the landmark ruling Roe v. Wade.
Calling the law “unconstitutional on its face,” U.S. District Judge Timothy Black rejected Ohio’s argument that the Supreme Court had never recognized a woman’s right to abort an unborn child because of a disability.
“The state cannot dictate what factors a woman is permitted to consider in making her choice,” Black wrote. “The state’s attempt to carve out exceptions to a categorical right where none exist fail as a matter of law.”
Ohio Attorney General Mike DeWine said the state would appeal.
“I strongly disagree with the district court’s ruling that there is a categorical right to abortion that prevents even any consideration of Ohio’s profound interests in combating discrimination against a class of human beings based upon disability,” DeWine said in a statement.
Represented by the American Civil Liberties Union, the group Preterm-Cleveland brought the underlying challenge after Ohio Governor John Kasich signed the ban into law via House Bill 214.
Though the law was set to take effect on March 22, Black concluded Wednesday that the challengers deserved an injunction to prevent harm to their patients and to defend women’s constitutional right to choose whether to end a pregnancy before a fetus becomes viable.
Gov. Kasich’s spokesman Jon Keeling said he could not comment on pending litigation. Freda Levenson with the ACLU of Ohio meanwhile called the law “another ploy” to stop women from getting the care they need.
“We are committed to making sure this unconstitutional law is never enforced, and today’s ruling brings us one step closer,” Levenson said in a statement Wednesday.
President of Ohio Right to Life Mike Gonidakis called the court’s ruling a “tragedy” but said he was confident that DeWine would strenuously defend the law in court.
“Our pro-life law simply ensured that Ohioans with Down syndrome would be protected against lethal discrimination,” Gonidakis said in a statement. “Unfortunately, the ACLU and the abortion industry callously disregarded these Ohioans. This isn’t the end. This is just the beginning.”
In his 22-page ruling, Judge Black noted that enactment of the law would interfere with operations at abortion clinics.
If staff believe their patients are seeking an abortion because of their child’s disability, in violation of H.B. 214, they would be forced to counsel such “patients to travel out of state to seek the desired care,” Black wrote.
“Some of these women will not be able to afford the cost of traveling out of state; but even those who have the means and financial resources to travel will experience delays that can increase the risks related to the abortion procedure,” the ruling continues.
Black also unraveled Ohio’s claim that unborn children with a fetal indication of Down syndrome are “disproportionately selected for abortion,” causing a supposed reduction in the Down syndrome community.
“These arguments simply rephrase the state’s interest in potential life, which the Supreme Court has already held does not become compelling under the law until viability,” the ruling states.
Down syndrome is a condition in which a baby has an extra copy of a chromosome. Infants are usually born with 46 chromosomes, and the extra copy of one of these chromosomes, chromosome 21, causes developmental disabilities in the body and brain. According to the Centers for Disease Control and Prevention, 6,000 babies are born each year with Down syndrome. The condition occurs in close to 1 out of every 700 infants.
Ohio became the third state to enact a Down syndrome abortion ban after Indiana and North Dakota passed similar laws. In 2017, an Indiana federal judge permanently struck down a similar law. That case is currently on appeal at the Seventh Circuit.
Supporters of Ohio’s law say it protects people with disabilities from discrimination in state where Gov. Kasich has signed close to 20 abortion restrictions into law. Pro-abortion rights advocates have called it a transparent move to criminalize doctors and prevent women from exercising their constitutional rights.
Doctors and medical professional who choose to violate the law face the threat of fourth-degree felony charges and could be stripped of their licenses. The providers said in their Feb 15 lawsuit that the law provides little support for parents or children with Down syndrome.