Bioethics Blogs

Banning Abortion for Down Syndrome: Legal or Ethical Justification?

The Ohio legislature is expected to approve a bill this fall that would make it illegal for doctors to perform an abortion if the reason the woman wants a termination is to avoid having a baby with Down syndrome. Since prenatal tests for Down syndrome are done in the second, or even the first, trimester, such a law is clearly in violation of Roe v. Wade, which said that women have a constitutional right to terminate their pregnancies until viability, which occurs in the third trimester. After viability, the court said, states may, if they choose, restrict or even prohibit abortions, unless such a restriction would threaten the woman’s life or health.

In the companion case to Roe, Doe v. Bolton, no specific mention was made of abortion for “fetal indications,” but “health” was interpreted broadly to include “all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.” This suggests that, prior to viability, the reason for wanting an abortion is irrelevant to the woman’s constitutional right to have one, and even after viability, she may not be prevented from seeking an abortion if having the child would be detrimental to her health, broadly interpreted.

Although Casey v. Planned Parenthood replaced Roe’s trimester framework with the notion of “undue burden” in assessing which restrictions on abortion are constitutionally permissible, the basic idea in Roe that women have a constitutional right to have abortions prior viability was left intact. Of course, this has not stopped right-to-life groups from introducing, and often passing, legislation restricting abortion rights, including requiring that abortions be performed in a hospital (as early as 90 days gestation in Utah), requiring the presence of a second physician, or requiring a waiting period (usually 24 hours) between receiving counseling and getting an abortion.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.