A coalition of 19 state attorneys general filed a friend of the court brief late last week asking the Supreme Court to review and uphold a 2016 Indiana law which bans abortions that are chosen solely due to a prenatal diagnosis of Down syndrome. The law also bars other discriminatory abortions chosen solely because of other disabilities, biological sex, or race.
Last month, Indiana Attorney General Curtis Hill asked the Supreme Court to review the law after the Seventh Circuit Court of Appeals ruled against the measure, finding it to be “unconstitutional.”
The coalition, led by Wisconsin’s attorney general, argued in the brief that the measure “furthers the State’s compelling interest in prohibiting the discriminatory elimination of classes of human beings by race, gender, or disability.”
“The Seventh Circuit invalidated this law by purporting to find within this Court’s case law a ‘categorical’ right to pre-viability abortion,” the brief noted, “a right that a State cannot infringe no matter how powerful its interest…That conclusion is legally wrong and would perversely place the unenumerated right to pre-viability abortion above even core protections of the Bill of Rights.”
They pointed out that if laws to prohibit discrimination against the Down syndrome community in other areas are under the authority of the state then preventing abortion practices that could eliminate the community should also be within the state's authority.
"Surely a State that has the constitutional authority to protect members of the Down syndrome community from being discriminated against in employment or public accommodations can protect that same community from wholesale elimination by eugenic practices," they argued.
In addition to their objections to the Seventh Circuit’s argument for overturning the measure, the states argued that the issue is of pressing concern due to the alarmingly high rates of abortion for those with Down syndrome in the U.S. and abroad.
“The evil that the Antidiscrimination Provision seeks to combat is quite serious,” they wrote. “Iceland is a canary in the coal mine. ‘[T]he vast majority of women [in Iceland]—close to 100 percent—who receive[ ] a positive test for Down syndrome terminate[ ] their pregnancy.’”
A CBS report last year highlighted the near 100 percent abortion rate for those diagnosed with the condition in Iceland. The brief also cited Denmark’s 98 percent abortion rate following screening and diagnosis of the condition.
“The United States is not immune from these evil practices; indeed, the casus belli of this lawsuit is Respondents’ unabashed desire to assist in such discrimination,” they added, observing that “according to the best available estimates, 50 percent or more of pregnant women in the United States who learn that their child will be born with Down syndrome eliminate that child by abortion.”
In their lawsuit against the ban, Planned Parenthood did not dispute the eugenics concerns or high abortion rates for those with Down syndrome.
When Seventh Circuit Court of Appeals Judge Tanya Walton Pratt issued an injunction against the ban, she acknowledged that “the parties are essentially in agreement that a significant number of women have sought, and will continue to seek, an abortion solely because of the diagnosis of a disability or the risk thereof” and that “the parties agree that the number of women who will seek an abortion at least in part out of these concerns will likely increase as testing is more widely available than ever before.”
West Virginia Attorney General Patrick Morrisey commented on the coalition's brief Monday.
“The Constitution gives every state the inherent authority to protect life,” he said. “That authority extends to enacting laws that prohibit abortion from being used as a tool to eliminate any particular segment of the population. Every American, regardless of their biological sex, race or disability, has a God-given right to life, liberty and the pursuit of happiness.”
The states joining Wisconsin and West Virginia in the brief are Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas and Utah.