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 to 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. This last might not seem like an “undue burden” until one realizes that many women have to travel long distances to reach an abortion provider. A 24-hour waiting period can mean paying for a hotel room, finding and paying for child care, and losing time from work, or even losing a job.
Putting the constitutionality of the Ohio bill aside, what is its moral justification? One supporter says, “As soon as babies are born, they’re protected by the Americans With Disabilities Act, but we need this bill so that they can be born, and not culled.” This is clearly question begging, because it assumes that fetuses have the same moral status as born babies. The argument in favor of abortion rests, in part, on the belief that fetuses are not babies, and not entitled to the same protections that babies (like the rest of us) have. The other part of the abortion argument stems from the fact that the fetus is inside the woman’s body, and that gestating the fetus imposes serious burdens on the pregnant woman. Prohibiting abortion turns women into “fetal containers,” in George Annas’s telling phrase. The decision whether to accept these burdens belongs to the woman herself.
Some find it bizarre to allow abortion for any reason, and then to restrict it for one particular reason. Legally, restrictions based on reasons may be difficult, if not impossible, to enforce. If a woman knows that she cannot obtain an abortion to avoid having a child with Down syndrome, what’s to stop her giving a different reason? In addition, most women who learn that the fetus has Down syndrome choose to abort. It seems odd to allow prenatal testing for Down syndrome – which the American College of Obstetricians and Gynecologists has recommended should be offered to all pregnant women – and then deny women the opportunity to decide what to do with the information.
From a moral perspective, however, the reason for abortion does seem to make a difference. What if she wants to abort a healthy fetus because it’s the “wrong” sex? What if she’s opting for abortion to get back at a husband or partner who’s done her wrong? I pick this example not because it is likely, but simply to make the point that it is theoretically possible to distinguish morally between reasons for abortion. In the real world, women have abortions because they are not willing to become mothers: not ever, not now, not in this situation. That is as personal and intimate decision as one can make. Moreover, it is a decision that primarily affects the woman whose body it is. That is why she, not her husband and not the state, should be the one to make the decision.
A third objection to abortion to prevent the birth a child with Down syndrome comes from the disability rights movement. Its proponents argue that the choice of abortion in such cases is often based on ignorance about the kind of life the child could lead and discriminatory attitudes toward people with disabilities. Moreover, such attitudes not only influence abortion decisions, but also are likely to have widespread effects on people with disabilities. People may feel that, given the option of abortion, there is no need for society to provide medical and educational resources for people with Down syndrome. There may be social pressure, sometimes voiced by medical personnel, on women to choose abortion rather than have a child with Down syndrome.
This is an argument that must be taken seriously. Fifty years ago, when there was no prenatal testing, women who gave birth to babies with Down syndrome were often told that their babies would be severely cognitively impaired, that they would never be able to learn or live independently, and that the best thing would be to institutionalize them. Today, we know that there is a wide range of abilities in people who have Down syndrome. Many can go to regular schools and some have graduated from high school. Some have jobs and live independently. The cognitive deficits noted in earlier generations were probably at least in part caused by institutionalization itself, not the condition.
No one should be bullied into having an abortion or, for that matter, into having prenatal testing. Prenatal testing should be offered to all pregnant women, but it should not be assumed that all women want it or that all women who have an affected fetus will choose abortion. All women who want more information about Down syndrome should get it, but it should not be forced on anyone who does not want it. And if she does decide to go ahead with the pregnancy, she should know that there are services available to her child and her family. Instead of passing an unenforceable and unconstitutional law, Ohio should devote its time to ensuring that all people with disabilities, Down syndrome or otherwise, get the resources and services they need.
Bonnie Steinbock, a Hastings Center Fellow, is professor emeritus of philosophy at the University at Albany, State University of New York, and a professor of bioethics at Union Graduate College’s Center for Bioethics and Clinical Leadership.