On Tuesday, the Trump administration put its support behind a proposed Ohio law that would ban abortion once doctors know a baby has Down syndrome. The “friend of the court” brief issued by the Justice Department cites existing legal precedent prohibiting discrimination against people with disabilities.
As written, the 2017 Ohio law in question prohibits terminating a pregnancy after prenatal screenings test positive for Down syndrome, according to the Associated Press. Doctors who perform an abortion after a fetal Down syndrome diagnosis would face fourth-degree felony charges, lose their medical license and be liable for legal damages. Pregnant women would not face criminal charges.
The American Civil Liberties Union (ACLU) challenged the abortion ban in court on behalf of Planned Parenthood and other abortion providers in Ohio, who called the law unconstitutional. They argued federal laws prohibit states from restricting a woman’s right to terminate a pregnancy before viability. A federal judge put Ohio’s law on hold, and in October, a federal appeals court upheld that ruling.
“The ACLU of Ohio opposes discrimination in all forms, and works to ensure that people with disabilities are treated with equality and dignity,” the ACLU said in a statement at the time. “However, this purposely divisive legislation is about restricting abortion, not protecting against discrimination.”
The Ohio Attorney General’s Office appealed the decision, bringing the issue to the full 6th U.S. Circuit Court of Appeals, which will rehear the case. Ohio attorneys said the law prevents discrimination based on disability under established legal precedent thanks to the Americans With Disabilities Act. They further argue that because the law does not criminalize women and only restricts providers from performing abortions after a fetal diagnosis of Down syndrome, it doesn’t really impact a woman’s right to choose.
As the court of appeals prepares to rehear the case on prenatal Down syndrome abortion bans, Trump’s Justice Department expressed its support for the legislation and leaned into Ohio attorney’s latter argument.
“Nothing in Ohio’s law creates a substantial obstacle to women obtaining an abortion,” the Justice Department said in its brief. “Nothing in the Constitution or Supreme Court precedent requires States to authorize medical providers to participate in abortions the providers know are based on Down syndrome.”
Along with Ohio, Indiana, Louisiana, North Dakota and Kentucky have proposed restrictions on abortion after a Down syndrome diagnosis, while Pennsylvania Governor Tom Wolf vetoed similar legislation in November.