Ohio’s governor John Kasich has signed into law a ban on abortion performed on the basis of Down syndrome. I’m going to call back to a post I wrote last year when Mike Pence signed a similar law for Indiana:
Before I go into what’s so horrible about this bill, I want to first acknowledge that it’s almost certainly blatantly unconstitutional. To my knowledge, there is no legal basis for banning abortions that would otherwise be legal based on the reason a woman wants one. And Indiana’s law doesn’t just ban abortions performed because of fetal disability– it also bans abortions based on the race, color, national origin, ancestry, or sex of the fetus. Abortion was deemed a fundamental right in Roe v. Wade, and fundamental rights can’t be abridged based on a person’s motive for exercising them. One would think.
Elizabeth Nash, state issues manager at the Guttmacher Institute, made a great comment about the specifications of the bill: “They basically took non-discrimination language and made it an abortion ban.” It’s always fun when conservatives pretend to care about diversity and egalitarianism purely for the sake of trying to make liberals look like hypocrites. What’s not fun is that this tactic is often remarkably effective, because on first blush a liberal might fully agree that women shouldn’t abort based on any of those factors. After all, none of these traits are the kid’s fault! They’re circumstances of birth!
Yeah, well…there’s a problem there. Because we’re not talking about a kid. We’re not talking about about circumstances of birth, because we’re not talking about someone about someone who has been born. A fetus that is aborted will never experience discrimination, because that fetus will not experience anything. A fetus does not care why it was aborted, because a fetus doesn’t care about anything. The result of abortion is the same for every fetus, regardless of why the abortion occurred.
If we agree that a fetus is not a person (in the legal sense), then the fetus has no rights. It doesn’t matter whether it’s freedom of speech, the right to bear arms, the right to privacy, or the right not to be discriminated against (which, again, social conservatives don’t generally support in the first place)– non-people do not have rights.
If we don’t agree that a fetus isn’t a person, which is to say, you think they are people…then every abortion is equally murder. Reasons don’t matter. We don’t just ban murders that take place because of discrimination– they’re illegal regardless. So in that respect, passing a law that forbids abortion for discriminatory reasons is implicitly acknowledging that fetuses aren’t people.
And, in fact, the Ohio ACLU has called Kasich’s version of the law “blatantly unconstitutional”:
The ACLU of Ohio opposes this unconstitutional attack on reproductive freedom, which blatantly violates long-standing legal precedent prohibiting bans on abortion before viability.
A woman should be able to decide whether or not to terminate a pregnancy in consultation with those she trusts. HB 214 inappropriately inserts politics into private medical deliberations, and would discourage open, honest communication between a woman and her doctor.
It is not the government’s role to decide what can and cannot pass through a woman’s mind before deciding to have an abortion. This type of ban sets a dangerous precedent, and opens the door for politicians to further intrude into women’s personal health decisions.
The ACLU of Ohio opposes discrimination in all forms, and works to ensure that people with disabilities are treated with equality and dignity. However, this purposely divisive legislation is about restricting abortion, not protecting against discrimination. Instead of wasting more tax dollars on this political crusade against reproductive health care, legislators should focus on addressing the serious concerns of those with disabilities in our communities.
The last I heard about Indiana’s law was that a federal judge blocked it. Let’s hope the same happens for Ohio, but you’d think that instead of spending all of the time, energy, and taxpayer funds getting an obviously unconstitutional law passed, Kasich would be bright enough to look at what happened in Indiana and just not bother.