Planned Parenthood of Indiana and Kentucky has joined with the American Civil Liberties Union in suing to overturn a 2016 Indiana law stating that a preborn baby cannot be aborted “solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.” Now, a 19-state coalition has joined together to issue a friend-of-the-court brief, urging the Supreme Court of the United States to uphold state laws banning abortion based on disability, gender, or race. These laws are commonly referenced as banning abortion due to Down syndrome, as babies diagnosed with Down syndrome prenatally are very likely to become victims of abortion.
In September of 2016, Judge Tanya Walton Pratt ruled in favor of Planned Parenthood and the ACLU, despite acknowledging that the rate of abortion for preborn babies with Down syndrome is high, writing 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 CEO of Planned Parenthood of Indiana and Kentucky swore that they would continue to commit abortions “solely because of a diagnosis of fetal Down syndrome or other genetic disabilities or the possibility of such a diagnosis.”
The coalition’s friend-of-the-court brief is led by Wisconsin Attorney General Brad Schimel, and is filed on behalf of the Indiana Department of Health. Wisconsin, Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and West Virginia all joined in the plea for the Supreme Court to review Indiana’s Down syndrome abortion ban, which the Seventh Court of Appeals declared unconstitutional.
The brief asks the Supreme Court to review and uphold Indiana’s law, noting that the law protects the state’s interest in “prohibiting the discriminatory elimination of classes of human beings by race, gender, or disability.” It argues that the Seventh Circuit ruled wrongly:
The Seventh Circuit invalidated this law by purporting to find within this Court’s case law a ‘categorical’ right to pre-viability abortion, 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.
… 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.
West Virginia Attorney General Patrick Morrissey spoke out about his decision to join the coalition this week, saying, “The Constitution gives every state the inherent authority to protect life. That authority extends to enacting laws that prohibit abortion from being used as a tool to eliminate any particular segment of the population….”