Down Syndrome Abortion Ban Laws to be Upheld as Constitutional

Without a doubt, in the post-Roe world, Down syndrome abortion ban laws will be upheld.

In 2019, the Arkansas state legislature passed into law Ark. Code Sec. 20-16-2103, a law banning abortion where the “pregnant woman is seeking an abortion solely on the basis” of a prenatal test positive for Down syndrome. An area abortion provider challenged the law in federal district court and received an injunction against the law going into effect. The Attorney General of Arkansas appealed to the 8th Circuit Court of Appeals. Several other states with similar Down syndrome abortion bans joined the appeal.

In a straight-forward decision, the 8th Circuit cited to the then-binding Supreme Court precedence of Casey v. Planned Parenthood as barring any prohibition or obstacle to a woman receiving an abortion before the fetus was viable outside the womb. Casey was the 1992 Supreme Court decision that upheld Roe v. Wade‘s recognition of a constitutional right to an abortion, but reinterpreted Roe‘s reasoning, resulting in a new review standard for abortion restrictions. The states attorneys general appealed to the Supreme Court, which granted review, but held its decision.

As covered in a previous post, in Dobbs, the Supreme Court overruled both Roe and Casey, holding that there is not a constitutional right to abortion and leaving the decision on whether and how abortion is to be administered to the deliberations of state governments.

On June 30, 2022, in light of the 8th Circuit’s decision being based on Casey, and with Casey having been overruled, the Supreme Court vacated the 8th Circuit’s decision and remanded the case back to the 8th Circuit “for further consideration in light of” Dobbs. Here’s what’s going to happen, and why:

At the end of its decision in Dobbs, the Supreme Court addressed “what standard will govern if state abortion regulations undergo constitutional challenge”. The Court succinctly stated that “rational-basis review is the appropriate standard for such challenges.” Rational-basis is considered the lowest standard of review, i.e. it is rare for laws to be successfully challenged under that standard.

The Court explained:

the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot substitute their social and economic beliefs for the judgment of legislative bodies.

(citations and quotations omitted). Even more on-point for the 8th Circuit when it considers whether Arkansas’ Down syndrome abortion ban has a legitimate reason to survive rational basis review, the Supreme Court stated the following:

These legitimate interests include respect for and preservation of prenatal life at all stages of development; … the preservation of the integrity of the medical profession; … and the prevention of discrimination on the basis of race, sex, or disability.

(citations omitted) (emphasis added).

And, that is why Down syndrome abortion bans will be upheld as constitutional. All that is needed for these laws to be constitutional is a legitimate reason and the Supreme Court has explicitly stated the prevention of discrimination on the basis of disability constitutes a legitimate reason.

The following states have Down syndrome abortion ban laws: Arizona, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Dakota, Tennessee, and Utah. If I have missed one, please list them in the comments.