The state of Ohio earned a well-deserved win last week regarding its 2017 Down Syndrome Non-Discrimination Act.
The 6th U.S. Circuit Court of Appeals lifted the lower courts’ bans on this act, which prohibits doctors from performing discriminatory abortions based on a prenatal diagnosis of Down syndrome.
The eradication of discrimination was found by the majority to be the compelling state interest at issue in this case.
Yes, discrimination! That’s exactly the injustice that has been perpetrated disproportionately against children with Down syndrome since Roe v. Wade made all abortions “lawful” in 1973.
At last, a conscientious court has confronted the injustice and endorsed Ohio’s interests in:
1. “protecting the Down syndrome community from the stigma it suffers from the practice of Down-syndrome-selective abortions;”
2. “protecting women whose fetuses have Down syndrome from coercion by doctors who espouse and advocate the abortion of all such fetuses;” and
3. “protecting the integrity and ethics of the medical profession by preventing doctors from enabling such targeted abortions.”
Onus on Doctors to Thwart “Down Syndrome Stigmatic Decision-Making”
With careful discernment, the court has recognized that Ohio’s protective law does not prohibit the pregnant mother from deciding under Roe’s “privacy” provisions to commission an abortion by reason of her own personal prejudice against disability. Rather, says the court, “it forbids the doctor who would perform her abortion from effectuating that reason.”
It is “the doctor’s knowing participation in the Down-syndrome stigmatic decision making” that is wrong, Judge Alice M. Batchelder wrote in the majority opinion.
The court has done well to draw this critical distinction. Indeed, the majority in this decision and in their concurrences have taken up and dealt competently with the entrenched injustice of eugenic abortion of children with disabilities such as Down syndrome.
They have responded with integrity to the challenge of this discrimination. Justice Clarence Thomas flagged this prejudice in his concurrence in a 2019 case involving an Indiana law that prohibited abortion because of Down syndrome or race or sex selection.
Justice Thomas challenged the Supreme Court to examine the ominous truth that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”
Two-Thirds of Children Detected with Down’s Aborted
Taking up this challenge, the 6th U.S. Circuit Court of Appeals has focused now on the evidence that, “in the United States, two thirds of the pregnancies with a fetal diagnosis of Down syndrome are aborted.”
The disproportionality of these statistics demonstrates a breach of the principle of equality that cannot be tolerated indefinitely.
The court takes the right approach.
When abortion laws are exceedingly liberal, responses by health providers can discourage care-seeking behavior for the health problems of unborn children with Down’s. They can negatively influence a distressed mother towards procuring an abortion.
Disproportionately high rates of maternal “choice” to abort these children with Down syndrome may be attributable to, inter alia, financial fears of out-of-pocket costs, lack of support facilities for their families, and/or poor educational and medical treatment infrastructure within communities.
Indeed, a lack of cultural or social sensitivity to the needs of families with children with Down’s leads to reluctance to respect their right to survival.
The court is right to draw attention to pro-abortion pressures from within the health system put on vulnerable pregnant mothers. When the options for children with Down syndrome are misrepresented as poor, a mother’s willingness to seek life-affirming care for her child is sabotaged.
Pro-abortion doctors undermine the health system as a core social institution that should reject prejudice and promote equal respect for unborn children with or without Down syndrome.
Neither Coercion nor Choice Excuses Eugenic Abortion
The attitudinal prejudice of many doctors today against birthing children detected prenatally to have Down’s must raise doubts about the claim that the abortion “choice” is “voluntary.” The relentless attrition of births to this group threatens over time to change for the worse the lives of those with Down syndrome and the community attitudes towards those people.
Today, in the U.S. and in other countries around the world, a distinctly eugenic pattern is emerging, a despicable pattern of prevention of births within a targeted group, a pattern that inexorably is changing the way we think about the survivors of that group, a pattern that marks them out as curiosities. Their mothers are asked in the streets, “Didn’t you have prenatal screening?”
Insidiously, this accusatory tone arises in encounters with those with disabilities who have survived the prenatal selection process.
The Making of a Crime Against Humanity
Pro-abortion authorities today insist that the selection of children with Down’s is not eugenics because it is just individual women exercising their right to make informed choices to continue with or to abort the pregnancy.
But they are wrong. This is a crime against humanity. This is an accumulative crime. So many individual decisions made on eugenic grounds accumulate into a criminal, systematic and widespread persecution of the group, a crime against humanity facilitated by legislatures and judiciaries.
The growing prejudice is an unintended consequence of the emphasis on “choice.” In initiating this policy that promotes and endorses the “choice” to abort children identified to have Down’s, politicians, judges and bureaucrats failed to foresee the reprehensible growth in public prejudice against the survivors, the surviving third, the children whose mothers rejected “the choice” to abort them.
The “choice” by two-thirds of mothers to abort their children on eugenic grounds is negatively impacting the remaining third of mothers who are now said to “choose” to give birth to their children and are being castigated in public forums for their “choice” — “their choice, their responsibility”
Unintended Consequences of Lethal Prejudice
As eugenic birth prevention increases in popularity, unintended consequences emerge. No one has given any thought to the growing predicament of the survivors, that they must continue to try to live happily in a society that endorses the eugenics of the health system.
Abortion proponents say this is all voluntary — every woman can make a choice, and the choice to end the pregnancy has no impact on others who choose to have their own children with these conditions.
But the unwelcome truth is that the choice to prevent births to this group gravely impacts the survivors. It is difficult to live confidently and comfortably in a society in which two-thirds of mothers make the “informed choice” to prevent births of their children explicitly and openly because their children had the same condition that the survivors are now living with.
Lethal prejudice is present in the community.
Pro-abortion laws are facilitating the “choice” and are actually changing social attitudes towards the survivors. Before identification and “choice” was offered, all children with these conditions were accepted, at the very least, as being born through no fault of the parents. Now parents are being openly accused of failing to prevent their births. The right to choose to prevent births is fast becoming the duty to choose birth prevention.
“Choice” is no excuse for deadly discrimination against children with Down’s.
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