Regularly there are positive news reports raising awareness about what a life with Down syndrome can be. Gerber baby food selected for the first time ever a baby with Down syndrome to be its “Gerber baby.” The re-launched American Idol featured a young man with Down syndrome singing with a contestant. And, 50 moms created a carpool karaoke video with their children with Down syndrome that moved James Corden to tears.
But, it has not been all good news reported. CBS reported how in Iceland hardly any children with Down syndrome are born anymore due to most pregnancies being terminated following a prenatal test result. Similarly, the Copenhagen Post reported how Down syndrome is “heading for extinction in Denmark” due to a public health system that allows for a high uptake in prenatal testing and then pregnancy termination.
Responding to those headlines, a bill has been introduced in this year’s legislative session in Frankfort: House Bill 455. It is patterned after a law passed in Ohio, with other laws having been passed in Indiana, Louisiana, and North Dakota, and bills pending in Utah and Pennsylvania. These measures are routinely referred to as “Down syndrome-abortion bans.”
On March 8, a legislative committee held a hearing on HB 455. The coverage of that hearing highlighted the opposition’s testimony. Witnesses criticized the bill for exploiting lives with Down syndrome to further the agenda of those seeking to restrict a woman’s access to abortion. They also complained that such measures are brought by groups and backed by politicians that self-identify as “pro-life” but who fail to support measures needed to support families who have children with special needs.
I testified as well at the hearing. I share the concerns expressed by the bill’s opponents and have critiqued such bills. These “bans” are typically initiated by pro-life groups. Because they have not been enforced once passed, it seems they amount to little more than a line for a fundraising letter about a claimed legislative accomplishment.
However, what the critics did not address is the other purpose of these bills.
These bills further recognize that the high rate of Down syndrome-selective abortions is having a discriminatory effect. By their very nature, selective abortions discriminate, as recognized by the American College of Obstetricians & Gynecologists (ACOG).
ACOG’s ethics committee issued an opinion criticizing sex-selective abortions for expressing a preference for one sex over another, which reinforces sexist attitudes in society. The same can be said for Down syndrome-selective abortions: expressing a preference for individuals who do not have Down syndrome, thereby reinforcing ableist attitudes in society.
Some may read that and intuitively think that society should express a preference for able-bodied people over those with disabilities. But, that runs counter to the public expressions of equality from our Declaration of Independence, to the 14th Amendment, to the Individuals with Disabilities Education Act, to the Americans with Disabilities Act’s statements against disability discrimination.
It is unfortunate that this issue is inextricably intertwined with abortion as there is little common ground to be reached between the rival positions. Unfortunate because most people do agree that discriminating against those on the basis of ability or disability should not be allowed. After all, we all have disabilities, some just less obvious or better hidden than others.
The discriminatory impact of Down syndrome-selective abortion is very real from a societal standpoint. At the hearing, I presented a study that in Kentucky, for the most current-year reported, there were 44 babies born with Down syndrome and 39 selectively aborted. In a very real way, this means that for each infant you see with Down syndrome in Kentucky, another pregnancy tested positive for Down syndrome and was terminated.
The impact of this halving of the future generation is that it makes Down syndrome a rarer condition. This, then, makes it more difficult for those living with the condition and their loved ones to advocate for and receive the support services promised to them but for too long under-funded and under-committed to by state agencies, schools, and employers.
ACOG has recognized that selective termination has a negative effect on those living with the selected-against condition. It is right and proper for difficult issues affecting our society to be considered, debated, and voted upon by our elected officials. Hopefully, regardless of the outcome of HB 455, those same officials will support other measures to fully-include our loved ones living a life with Down syndrome.
Mark, thank you as always for your writings. Question: Do you think malpractice tort claims for Wrongful Birth or Wrongful Life can be successfully brought in states that adopt this legislation?
A good question. In the bill language considered in Kentucky and passed in Ohio and I believe Indiana, the statute allows for a civil suit against the physician if acting in breach of the statute, i.e. if performing an abortion due to having a test result for Down syndrome. To your point, the passing of the law could be argued to set the standard of care and hence a physician doing a DS-selective abortion is committing malpractice. I expect you could sue bring claims in the alternative, e.g. a statutory-based claim and a common law tort claim for malpractice, however I would expect any ultimate judgment would be considered to satisfy one or the other and not allow a double-dip for both claims.
Mark, I was coming at it from the opposite direction. If common law tort claims for, say, Wrongful Birth have been allowed in State A, which then adopts the Ohio statute, for example, do you think the new statute prevents further claims of Wrongful Birth where a prenatal diagnosis of Ds is missed or improperly explained?
That’s interesting and likely could be raised as an affirmative defense. Ohio allows a very limited version of wrongful birth, recognizing as damages only the additional medical care past the point of when the parents could’ve known and terminated along with the costs of delivery of the child. Beyond that, no other damages are allowed. As a result, wrongful birth lawsuits are rare in Ohio. Indiana and North Dakota do not recognize the tort of wrongful birth on the basis of disability.