Indiana leads amicus brief defending Ohio Down syndrome abortion statute

A split federal appeals court has upheld an injunction against an Ohio law prohibiting abortions based on a fetus having Down syndrome, prompting the Indiana Attorney General’s Office to file an amicus brief in support of the neighboring state.

Panelists from the 6th Circuit Court of Appeals upheld an injunction last month against an Ohio statute that would sentence doctors up to 18 months in prison for performing an abortion while having knowledge that the mother’s decision was based on a prenatal diagnosis of Down syndrome.

In its decision in Preterm-Cleveland, et al. v. Lance Himes, et al., 18-3329, the 6th Circuit concluded that any limitation on pre-viability abortions is unconstitutional and that Ohio’s interest in preventing discriminatory abortions “does not become compelling until viability.”

Indiana filed an amicus brief Nov. 1 supporting the constitutionality of the Ohio law, arguing that “states have a compelling interest in preventing the spread of abortion as a tool for eugenics … .” The amici are urging the full 6th Circuit to rehear the matter.

“There is no escaping the hard truth that permitting abortion of the disabled not only denies equal human worth but also gradually eliminates certain categories of the disabled from society,” Attorney General Curtis Hill said in a statement. “Iceland has reached a nearly 100 percent elimination rate for babies with Down syndrome, and the United States and other developed countries are not far behind.”

The amicus brief, co-led by Indiana and Kentucky, is joined by 14 other states.

U.S. Supreme Court justices in May similarly let stand a 7th Circuit Court of Appeals ruling, which blocked an Indiana law that would have prevented abortions based on the gender, race or genetic abnormality of the fetus.

In a dissent to the Preterm-Cleveland decision, 6th Circuit Judge Alice M. Batchelder cited to Justice Clarence Thomas’s concurrence in Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 178, 1782-93 (2019).

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