Indiana bans Down syndrome selective abortions

Well … not exactly. Read to the end to see what the law says, what it actually does, and the problem that it codifies about Down syndrome. 

One March 24, 2016, the internet erupted with reports like the one below:

This is not exactly what happened by Governor Pence signing into a law that proponents claim is to ban selective abortions for Down syndrome.

What the law says

The bill that Governor Pence signed into law is HEA 1337. It is a lengthy bill that amends Indiana’s already lengthy law regulating abortion. There are several references to the ban against Down syndrome selective abortions. Here is the critical section that focuses on what exactly Indiana’s law says about Down syndrome selective abortions:

Chapter 4. Sex Selective and Disability Abortion Ban
Sec. 1. (a) As used in this chapter, “any other disability” means any disease, defect, or disorder that is genetically inherited. The term includes the following:
(1) A physical disability.
* * *
(6) Down syndrome.
(b) The term does not include a lethal fetal anomaly.
Sec. 2. As used in this chapter, “Down syndrome” means a chromosomal disorder associated with an extra chromosome 21 or an effective trisomy for chromosome 21.
Sec. 3. As used in this chapter, “potential diagnosis” refers to the presence of some risk factors that indicate that a health problem may occur.
* * *
Sec. 6. (a) A person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or has a potential diagnosis of Down syndrome.
(b) A person may not intentionally perform or attempt toperform an abortion after viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or has a potential diagnosis of Down syndrome.
(c) This section is severable as specified in IC 1-1-1-8.
* * *
Sec. 9. (a) A person who knowingly or intentionally performs an abortion in violation of this chapter may be subject to:
(1) disciplinary sanctions under IC 25-1-9; and
(2) civil liability for wrongful death.
(b) A pregnant woman upon whom an abortion is performed in violation of this chapter may not be prosecuted for violating or conspiring to violate this chapter.

What the law does

The reporting on the signing of this law would suggest that Indiana has banned Down syndrome selective abortions. It has not. What the law does is subject any person who performs an abortion to two possible penalties.

The first is “disciplinary sanctions under IC 25-1-9.” What are those sanctions? Here are the possibilities from that law:

Disciplinary sanctions
Sec. 9. (a) The board may impose any of the following sanctions, singly or in combination, …:
(1) Permanently revoke a practitioner’s license.
(2) Suspend a practitioner’s license.
(3) Censure a practitioner.
(4) Issue a letter of reprimand.
(5) Place a practitioner on probation status …
* * *
(6) Assess a fine against the practitioner in an amount not to exceed one thousand dollars ($1,000) for each violation ….

Now, permanent revocation of a license is a stiff penalty, depriving a medical practitioner of his or her ability to practice medicine in the State of Indiana. But, that is not the required discipline for a violation of the claimed Down syndrome selective abortion ban. Instead, the practitioner could simply receive a fine of $1,000 (or less) or a letter of reprimand.

Hardly a deterrent to a practitioner who was willing to subject him- or herself to possible discipline by intentionally performing a Down syndrome selective abortion.

The other penalty is to subject the practitioner to civil liability for wrongful death. I have written how this allowance for civil liability–particularly when, as with the Indiana bill, the pregnant woman is immune from any penalty even for “conspiring to violate” the claimed ban–can result in a bizarre incentive for mothers to seek out selective abortions after a Down syndrome prenatal test result.

Further, one penalty permitted by the North Dakota law, on which Indiana’s is premised, or the Ohio bill similar to the Indiana and North Dakota law, is that the Indiana law does not allow for a criminal penalty. Therefore, the strictest penalty–criminal liability–is not a deterrent for violating the Indiana law because it does not allow for criminal prosecution of practitioners who intentionally perform a Down syndrome selective abortion.

The effect of the law

I have written previously on this law when it was proposed as a bill and I incorporate that prior critique and direct your attention to it.

But to sum that critique up: this law does nothing but use Down syndrome to be a line in a fundraising letter for pro-life groups on what they claim is an accomplishment, which really does nothing absent enforcement.

The North Dakota “ban” was enacted three years ago. The state’s only abortion provider says it has had no impact on their operations and no prosecution or claim has been brought for the “ban’s” violation.

At the same time, I have also written previously on the merit of the North Dakota law and how, even if not enforced, it can have serve a symbolic purpose. (Again, I commend that post to you, as well).

And, while the law will draw fire from reproductive rights advocates and equally vehement defenses from pro-life advocates, I have defended these laws being passed for the purpose of doing exactly what should be done in a democratic, pluralistic society: on thorny, controversial issues where there is debate, the issue should be debated and a decision rendered by our elected leaders. The side who feels they lost in that debate can then work through the democratic process to change the law by electing different leaders and making amendments in future legislatures. It’s not easy, but it’s the best process that we’ve come up with as humans for dealing with these sort of public policy issues.

The problem with the law.

But, having said (and written extensively) on all of that, I do have a very real problem with a law that claims to be an anti-discriminatory, civil rights law that defends the dignity and value of a life with Down syndrome:

THE LAW CODIFIES DOWN SYNDROME AS A DISORDER & A HEALTH PROBLEM!

Did you catch that when reading the actual text of the law? In case you missed it:

Sec. 1. (a) As used in this chapter, “any other disability” means any disease, defect, or disorder that is genetically inherited. The term includes the following:
(1) A physical disability.
* * *
(6) Down syndrome.
(b) The term does not include a lethal fetal anomaly.
Sec. 2. As used in this chapter, “Down syndrome” means a chromosomal disorder associated with an extra chromosome 21 or an effective trisomy for chromosome 21.
Sec. 3. As used in this chapter, “potential diagnosis” refers to the presence of some risk factors that indicate that a health problem may occur.
* * *
Sec. 6. (a) A person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or has a potential diagnosis of Down syndrome.

(emphasis added). The very language of the law explicitly says that included within the “disorders” covered by the ban is Down syndrome, which “means a chromosomal disorder” and a potential diagnosis of Down syndrome “indicate[s ] a health problem.”

Having medicalized and stigmatized “Down syndrome” as a “disorder” and a “health problem,” what sort of financial judgment would come from any lawsuit against a practitioner who performed the claimed banned selective abortion? The practitioner could point right to the law and say, “what damages for wrongful death? The abortion took care of a health problem. It prevented this family from being burdened by a disorder.”

I understand that Down syndrome is considered by most to indeed be a disorder and a health problem. But, if those “most” would have microarray testing done of their own chromosomal make-up, they, too, would learn that they have a chromosomal disorder that could manifest as a health problem. They may have a microdeletion that makes them susceptible to cancer. Or, they could have a balanced translocation that does not affect them, but could be lethal if it manifested as an unbalanced translocation in their offspring. Or, if they haven’t reached the age of 40, they might learn they have Huntington’s disease, which will only manifest as they get older, but then result in a decline in their faculties until they die an early death.

What I’ve instead learned since the birth of my daughter is that her having an extra copy of the 21st Chromosome is just a more obvious (at a chromosomal level) disorder than the one I’m sure I have and that chromosomal disorder that you have. This is because there is no human being that doesn’t have something that could be called a disorder.

Similarly, just as Down syndrome is associated with certain health conditions, every one of us currently has or will develop some health condition. It’s the nature of being human. Those with Down syndrome just have those associated conditions happen often enough that medical professionals can label them with a “syndrome.” But, having walked this earth for 40+ years, I’ve witnessed enough of my fellow man to know that I belong to the “balding, near-sighted, melanin-challenged” group of males that should have its own “syndrome.”

Note though, that if I were to make this more holistic, embrace-human-genetic-diversity argument in Indiana to refute those who would say my daughter and her friends like her who have Down syndrome do not have a disorder and are not a “health problem,” the Hoosier I would be talking to could succinctly answer: “Yes they are. Don’t you know the law?”

Hopefully, that democratic process will lead to an amendment in future legislatures to eliminate the codified stigmatization of Down syndrome as a “disorder” and a “health problem,” and more accurately state that it is a “chromosomal condition” and that a “potential diagnosis” indicates that a “health condition” may occur.