A recent report from the Charlotte Lozier Institute outlines a possible route to having the Supreme Court weigh in on pro-life legislation banning discriminatory, eugenic abortions.
Written by Thomas M. Messner, a senior fellow with the pro-life Charlotte Lozier Institute, the report rightly argues that Roe v. Wade, the Supreme Court decision that legalized elective abortion in all 50 states, and a subsequent abortion case, Planned Parenthood v. Casey, are unsound law that should be overturned. At this time, there is no direct legal challenge to Roe or Casey that the Court would consider. Messner argues, “In the meantime, in the same way that an employer has the right to terminate employment ‘at will’ but not for prohibited reasons such as an employee’s race, sex, or disability, federal courts should hold that the general right to abortion declared in Roe and affirmed in Casey does not include decisions to terminate pregnancy on the ground that the child has Down syndrome.”
These considerations are currently being heard in review of the 2017 Ohio law banning elective abortion on babies with Down syndrome. Ohio is not the first state to enact such a ban. A challenge to a similar ban in Indiana reached the Supreme Court in 2019, but the Court declined to review it, stating, “Only the Seventh Circuit has thus far addressed this kind of law.” Messner explains that if the Sixth Circuit, currently reviewing the Ohio law, rules in favor of the pro-life protections, this “would create a circuit split—a major factor in obtaining Supreme Court review.”
If the review of the Ohio law does not result in a positive ruling, other circuit courts are also currently considering similar bans on elective abortion for babies with Down syndrome in Arkansas and Missouri. If the Ohio law does not result in a circuit split, one of these other states’ laws could.
Even though the Supreme Court did not review the ban on abortions on babies with Down syndrome last year, Justice Clarence Thomas issued a lengthy explanation of the need for an eventual review of such law. In his opinion, Justice Thomas wrote that “[t]he Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below.” Justice Thomas explained the eugenic history of abortion in the United States and the pressing need for judicial review of measures aimed at preventing discriminatory abortions.
The ongoing review of laws like Ohio’s may prompt the Supreme Court to make such a review.
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