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A New Abortion Ban Makes Its Way to Congress for the First Time

Jo Yurcaba

Some pro-choice advocates worry these bills might be the first in a “wave of bills” focused on the reason someone is getting an abortion.

Congressional Republicans introduced a set of bills last week that would ban abortion “on the basis of Down syndrome,” arguing that they’re standing up for people with disabilities. But pro-choice and disability rights advocates say these “reason” bans—which target the reason a pregnant person seeks an abortion—don’t actually address the discrimination people with disabilities face, and instead create dangerous barriers to care.

The “Down Syndrome Discrimination by Abortion Prohibition Act,” was introduced by Sen. Jim Inhofe (R-OK) in the U.S. Senate as S 2745 and by Rep. Ron Estes (R-KS) as HR 4903 in the U.S. House of Representatives. The bills are seemingly the first federal attempt to ban abortions on the basis of a prenatal diagnosis of Down syndrome, according to Elizabeth Nash, senior state issues manager at the Guttmacher Institute.

The bills would ban doctors from “knowingly perform[ing] an abortion being sought because the baby has or may have Down syndrome,” according to a press release on Inhofe’s website. Physicians could face a fine and/or up to five years in prison if they perform an abortion knowing that the reason is based on a test result or prenatal diagnosis of Down syndrome.

The bills also state that “if the doctor does not know whether Down syndrome is a contributing factor,” the doctor must first ask a pregnant person if they are “aware of any test results indicating that the child has Down syndrome,” and then inform them of the ban. If a doctor fails to do so before performing an abortion, they would also face a fine and/or up to five years in prison.

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Pro-choice advocates say that bans like S 2745 and HR 4903 will create dangerous situations in hospitals and exam rooms. In 2017, Ohio passed a similar ban, which was recently blocked by a federal judge. Kellie Copeland, executive director of NARAL Pro-Choice Ohio, told Rewire.News the bill would make the patient “feel like they have to keep the circumstances of their pregnancy a secret .… There’s just no scenario where creating that environment between a doctor and a patient is a good idea.”

Copeland said that when Ohio’s bill was debated on the floor of the state legislature, lawmakers offered amendments that would improve services for families with children with Down syndrome, but they were all tabled. “The proponents of [Ohio’s bill] claim that this was to prevent discrimination against people with Down syndrome, or those families,” she said. But, like most other abortion restrictions, Copeland said Ohio’s law is about “finding a way to eliminate abortion access in as many instances as possible.”

Neither the National Down Syndrome Society (NDSS) nor the National Down Syndrome Congress took a position on Ohio’s bill, according to NPR, and both declined Rewire.News’ request for comment on the federal bill. Down syndrome advocacy groups “didn’t ask to be put in the middle of this debate or to be politicized,” Copeland said.

In fact, most Down syndrome advocacy groups are “pro-information,” which means they support laws that encourage or mandate that physicians give accurate, evidence-based information to people who receive a prenatal or postnatal Down syndrome diagnosis.

Jen Jacobs, executive director of the Down Syndrome Diagnosis Network (DSDN), told Rewire.News that the organization also does not have an official stance on abortion bans. DSDN focuses on “ensuring that families who are getting a new diagnosis are getting accurate, current information along with it at the same time, because we’re finding that that just does not happen,” Jacobs said. Providers often give pregnant people and families outdated information about Down syndrome, or they focus entirely on the medical aspect of the condition and not on the social implications or the “bigger picture,” she said.

As a result, pro-information groups like NDSS pushed Congress to pass the Prenatally and Postnatally Diagnosed Conditions Awareness Act in 2008 to try to address some of these issues. It was supposed to “increase the readiness of accurate, up-to-date and balanced information about Down syndrome to women and families considering prenatal testing,” according to NDSS’ website. But after Congress passed it, the law “was never funded and, in the absence of funding, advocates in several states have taken up the issue with their state legislatures.”

Jacobs noted that there’s no evidence that the federal ban introduced last week would help pregnant people who receive a prenatal Down syndrome diagnosis. “I think the intent behind it is to help be a more inclusive society, and to recognize that there are people with disabilities in our society and that all of those things are a natural part of life,” Jacobs said. “I just am not sure that it’s making the bridge to getting all of that really good information to families when they get a new diagnosis.”

Copeland went further, saying “reason” bans don’t provide services to children with disabilities or their families, but they also open up another avenue lawmakers can use to chip away at abortion access. She said Ohio’s law and the new federal versions might be the first in a “wave of bills” focused on the reason someone is getting an abortion.

“I am concerned that this then opens them up to add all sorts of other reasons, or to require patients to disclose why,” Copeland said. “They haven’t gone to that extent yet, but certainly this I think opens the door to that.”

It’s unlikely that the federal bills will pass in the House given the chamber’s Democratic majority, but the bill received some indirect support from President Trump at the start of October for Down Syndrome Awareness Month. He stated in his presidential message: “We must devote our efforts to ensure that the United States continues to exhibit reverence for human life—both born and unborn.” He also said his administration is dedicated to fostering opportunities for people with Down syndrome, but he didn’t specify how he would accomplish that.

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