The US federal government took Ohio’s side in a lawsuit over the state law prohibiting doctors from performing abortions based on a foetal diagnosis of Down’s syndrome.
The US Justice Department said in a filing that “nothing in Ohio’s law creates a substantial obstacle to women obtaining an abortion, and nothing in the Constitution or Supreme Court precedent requires States to authorise medical providers to participate in abortions the providers know are based on Down’s syndrome”.
Government lawyers argue the bill does not outlaw any abortions, it only places restrictions on providers.
The full Sixth US Circuit Court of Appeals has agreed to rehear the case after a three-judge panel agreed with a lower court that the 2017 law was likely unconstitutional.
That left in place a federal judge’s earlier order placing enforcement of the law on hold.
Taking up an argument used by supporters, the federal government told the court the law protects against discrimination based on disability, sticking with the principle established in other laws, such as the Americans for Disabilities Act.
The law would specifically outlaw abortions in cases where there is a positive test result or pre-natal diagnosis indicating Down’s syndrome.
Doctors who perform such an abortion could be charged with a fourth-degree felony, stripped of their medical licence and held liable for legal damages under the law.
A pregnant woman would face no criminal liability.
Abortion rights groups say the law falls into a category of restrictions called “reason bans” for attempting to get into the mind of a pregnant woman as she decides whether to continue or end a pregnancy.
The American Civil Liberties Union sued the Ohio Department of Health, the state medical board and county prosecutors to overturn the law on behalf of Planned Parenthood and several abortion providers.
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