Pro-Life Law Banning Abortions on Babies With Down Syndrome May Head to Supreme Court

National   |   Micaiah Bilger   |   Dec 27, 2018   |   6:30PM   |   Washington, DC

Pro-life advocates will watch the U.S. Supreme Court closely in January as the justices consider whether to hear a case about banning abortions on unborn babies with Down syndrome and other disabilities.

The Indiana Lawyer reports the case, Indiana Department of Health vs. Planned Parenthood of Indiana and Kentucky, is on the justices’ agenda for their Jan. 4, 2019 conference.

The case involves a 2016 Indiana law that prohibits discriminatory abortions based on the unborn baby’s disability, gender or race. It also requires that aborted babies’ bodies be buried or cremated. Then-Gov. Mike Pence signed the law, but the abortion giant Planned Parenthood and the American Civil Liberties Union challenged it in court.

A court order, upheld by the Seventh Circuit Court of Appeals earlier this year, prohibits Indiana from enforcing the law, but the state is appealing to the Supreme Court.

Indiana leaders, along with attorneys general in 19 other states, recently asked the high court to hear the case. In an amicus brief filed in November, the attorneys general argued that states should have the right to prohibit discrimination against all human beings, including those not yet born, the News and Sentinel reports.

Several pro-life and disability rights groups also filed friend-of-the-court briefs in support of the law.

However, Ken Falk, legal director of the ACLU Indiana chapter, which represents Planned Parenthood in the lawsuit, has claimed a woman alone should be allowed to decide whether to abort an unborn baby, and her reasons for the abortion should not matter.

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“[The law] ignores long-settled precedent from the Supreme Court that a woman, not the Legislature, gets to decide whether an abortion is the right decision for her and her family,” Falk said, previously. “The state’s request (for Supreme Court review) is yet another attempt by Indiana elected officials to take that decision out of a woman’s hands.”

If the case is accepted by the U.S. Supreme Court, there is hope that the law will be upheld. With Justice Brett Kavanaugh recently confirmed, the new conservative majority court may decide cases in a pro-life manner. Kavanaugh’s predecessor, Justice Anthony Kennedy, rarely ruled in favor of life.

Unborn babies with Down syndrome and other disabilities are discriminated against at alarming rates. Parents whose unborn babies have disabilities frequently report feeling pressured to abort them by doctors and genetic counselors.

The rate of unborn babies who are aborted after a Down syndrome diagnosis is about 67 percent in the U.S., according to CBS News. Some put the rate as high as 90 percent, but it is difficult to determine the number because the government does not keep detailed statistics about abortion.

One of the groups supporting the law, the American Center for Law and Justice, urged the high court to hear the case on behalf of 44 families of children with disabilities.

“Indiana’s law protects children like theirs and recognizes that unborn children deserve protection from invidious discrimination,” the legal group wrote in its brief. “Though many of these families ultimately lost their children, these parents do not consider that to have diminished the importance of the children’s lives.”

Calling the law a ban on eugenic abortions, ACLJ pointed out that many vulnerable parents are pressured into the “irreversible decision” to abort unborn babies with disabilities.

Indiana was the second state to establish a safeguard to protect unborn children with Down syndrome and other disabilities. Eight states also prohibit sex-selection abortions prior to viability.