Ohio Protects Children with Disabilities

Yesterday, the Sixth Circuit, in a 9-7 en banc ruling yesterday, upheld an Ohio law that bans doctors from performing abortions when they know that the mother is seeking an abortion because the child has down syndrome. 

A Regent Law Senior Lecturing Fellow was a judge in this ruling and drafted a great concurrence in the opinion quoting my article published by William and Mary’s Journal of Women and the Law in 1997 entitled Sex Selection Abortion and the Boomerang Effect of a Woman’s Right to Choose: A Paradox of the Skeptics, 4 Wm & Mary J. Women & L. 91 (Winter 1997), writing:

 “The Pennsylvania law at issue in Casey, notably, included an anti-eugenics provision, one that banned abortions based on sex selection. 18 Pa. Cons. Stat. Ann. § 3204(c). If the mother’s physician performed such an abortion, the physician had performed an “[un]necessary” abortion and had committed a “felony of the third degree.” Id. § 3204(c)–(d). Ohio’s law, H.B. 214, likewise says a physician who knowingly performs an abortion due to a Down syndrome diagnosis has committed a felony of the fourth degree. O.R.C. §§ 2919.10(C); 2929.14(A)(4). The sex selection provision in Casey went unchallenged, see Lynne Marie Kohm, Sex Selection Abortion and the Boomerang Effect of A Woman’s Right to Choose: A Paradox of the Skeptics, 4 Wm. & Mary J. Women & L. 91, 119 n.124 (1997), and thus remains unresolved. Unless, that is, the claimants somehow won the challenge without making it. The Supreme Court’s silence on the matter means that the Court has never rendered States “powerless to prevent abortions designed to choose the sex, race, and other attributes of children.” See Planned Parenthood of Ind. & Ky., 917 F.3d at 536 (Easterbrook, J., dissenting from the denial of rehearing en banc). That’s why the validity of a law like Ohio’s “remains an open question.” Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1792 (2019) (Thomas, J., concurring).”

The case is Preterm-Cleveland v. Attorney General of Ohio, PB-OH-0013, Docket / Court 1:19-cv-00360 (S.D. Ohio Apr. 14, 2021).  You can download that pivotal article right now at  Sex Selection Abortion and the Boomerang Effect of a Woman’s Right to Choose: A Paradox of the Skeptics.   Protecting children with disabilities is a step in the direction of family restoration.