Abortion, the Supreme Court, & Down syndrome

Wednesday, March 2, 2016, the United Supreme Court heard arguments on the first major abortion case before it in years. It reveals what is at issue with the vacancy on the court due to Justice Scalia’s death and the option most women choose following a prenatal diagnosis of Down syndrome: abortion.

The most chosen option

Abortion is inextricably intertwined with prenatal genetic testing. There has never been and still is not a prenatal treatment for Down syndrome. Therefore, the main medical option offered by a prenatal diagnosis–and one that obstetricians are instructed that they “should” advise their patient about–is whether to terminate the pregnancy or to continue it.

The most chosen option after a prenatal diagnosis is abortion. And, it’s being chosen by more women than ever as more women than ever are being offered and are accepting prenatal testing.

Advocates concerned about how prenatal testing is administered and its effect on the next generation of children born with Down syndrome must then confront how to address the issue of abortion.

The opportunity presented by a vacancy

Like most Americans, advocates can align themselves with what are considered pro-life views or pro-choice views and advocate for measures consistent with those broader-issue movements. As a result, just as it does at the state and federal legislative levels, abortion becomes an issue within the Down syndrome advocacy movement that ends up consuming much time and energy, but with little ever actually being done about it one way or another.

The opening of a seat on the United States Supreme Court due to the death of Justice Scalia is seen by many as an opportunity to either cement their side’s position for the lifetime of the next appointee or bring about much longed-for change in the Court’s decisions on this divisive issue.

Perhaps each side is correct, but as it pertains to the availability of abortion following a prenatal diagnosis, I don’t think who will fill Justice Scalia’s seat will change whether women will be able to procure a selective abortion. I do think, however, that the next appointee could profoundly change certain state measures making their way through the state legislatures and lower courts, as Wednesday’s oral argument demonstrated.

Roe v. Wade

On the foundational issue of whether a constitutional right to abortion will remain the law of the land, the math simply does not support an argument that the next nominated justice will make that much of a change.

This is because on the issue of abortion, it’s simply a matter of who holds the nine seats on the court and what their views are on whether the constitution recognizes a right to abortion.

On the liberal wing of the court, there are four staunch supporters of a woman’s right to an abortion. Justices Ginsberg, Breyer, Sotomayor, and Kagan are not going to change their view that Roe v. Wade, the case recognizing a woman’s right to abortion, was correctly decided.

Justice Scalia was a member of the Court’s conservative wing and an overt critic of Roe. However, even replacing Scalia with yet another Scalia, i.e. a justice who would vote exactly like him, would likely not threaten Roe.

This is because Scalia was on the Court when it had a five-justice majority appointed by Republican Presidents and, repeatedly, over Scalia’s dissents, the majority upheld Roe.

Therefore, because Justice Scalia was considered a far-right-leaning justice, even if an equally strong conservative justice were appointed to replace him, it would be a one-for-one exchange and the balance of power on the court would not change from what had previously ruled to uphold Roe‘s right to abortion. Justice Scalia’s vacancy, while significant on many other split-decisions, is not as significant on the issue of whether a right to abortion will remain recognized by the Supreme Court.

Even if there was such a seismic change and Roe were to be overturned, in the end, for those mothers committed to procuring a selective abortion, they would have to just travel further. This is because the issue of abortion access would revert to state regulation and many states already have on their books “springing” statutes that would recognize the right to abortion in the event Roe were overturned. As a result, women in Republican-dominated state governments would likely not have access to abortion in their home state. But, they could travel to Democrat-dominated state governments, like Maryland or California to procure their selective abortion.

This is why it does not matter who fills Justice Scalia’s seat if you hold the view that abortion should be outlawed. Because even if it were in your state, odds are it won’t be in a relatively nearby state to you.

But who will be Justice Scalia’s replacement will matter on how abortion is offered and provided.

Informed consent, healthcare safety, and unduly burdens

During Justice Scalia’s time on the Court, what have been described as incremental pro-life measures came before it for review, e.g. waiting periods, counseling about abortion, consent of both parents. Not all of these incremental measures were upheld by the Court. When they were, though, it was with the narrowest of margins and sometimes not even a majority, but a plurality. And, in each of those cases, the liberal wing of the Court was typically united in opposing the incremental measures.

The hearing on Wednesday, March 2, illustrated this divide. The measure under review was a Texas law requiring medical providers who perform abortions to have privileges at a local hospital and required the abortion clinic to meet the regulatory standards for an ambulatory surgical center–a higher level of regulation than what most abortion clinics operate at. Members of the Court’s liberal wing were noted for their aggressive challenging of the Texas solicitor general’s defense of the state law on the basis of healthcare safety.

During the oral argument, Justice Scalia’s chair was draped in black, but if that seat is filled by a member who would join the liberal wing, then that would tip the balance on the Court, providing a five-person majority when it comes to ruling against restrictions/regulations of abortion.

Down syndrome and abortion legislation

Since 2012, there have been legislative actions taken at the state level that pertain either overtly to Down syndrome and abortion, or have been enacted to provide accurate information about Down syndrome but amended to also address abortion in that context.

Regarding the former state laws, these are statutes that state as their purpose to ban Down syndrome selective abortion. They do so by making it illegal for a medical provider to perform an abortion if the purpose of that abortion is to terminate a pregnancy because of a prenatal indication of Down syndrome. The statutes criminalize the actions of the medical provider and not the woman seeking the abortion. So far, only North Dakota has passed such legislation, but it was introduced as bills in the state legislatures for Indiana and Ohio in 2015 and in Missouri in 2016.

In practice, it appears the North Dakota ban has had no effect. At least that is what the administrator for the sole abortion provider in North Dakota said in a follow-up report on the law’s effect. Nonetheless, given that the liberal wing has dissented against rulings upholding waiting periods and other incremental regulations of abortion, an outright ban on abortion for a particular purpose would almost certainly be ruled against by the liberal Supreme Court justices.

The other category of legislative efforts are what are known as “Down Syndrome Information Acts” or “DSIA’s”. The model language for these laws comes from Massachusetts’ version which requires any health care provider to deliver written materials and referral to local Down syndrome support organizations when a prenatal test result for Down syndrome is given to an expectant mother. So far, twelve states have enacted DSIAs, but several have added an amendment regarding abortion.

Indiana, Texas, and Louisiana each prohibit the information recognized by the implementing state agency of the DSIA to reference abortion as an option following a prenatal test result. Given that DSIAs that do not have this prohibition have already been criticized by left-leaning critics as imposing a script that health care providers must follow, the versions with overtly pro-life amendments would only increase the chance of DSIAs being challenged as infringing on a woman’s right to an abortion.

Regarding the DSIAs, those without the pro-life amendment likely would still be upheld as constitutional since they do nothing to impede a woman from seeking an abortion. Plus, the model DSIA language has been passed in states of all political leanings, from the traditional Democratic stronghold of Massachusetts to the Republican-controlled legislature and governor of Pennsylvania.

The pro-life amended DSIAs however would be more at risk of a constitutional challenge since it is a legislative enactment requiring that women receive information when most choose to abort, but the state is prohibited from referencing abortion as an option. With a five-person majority if Justice Scalia’s seat is filled by a liberal-leaning judge, then these pro-life DSIAs may face the fate of other pro-life incremental regulations and be found to be unconstitutional.