Down syndrome groups weigh in on Arizona abortion debate

Three Down syndrome organizations signed onto an amicus brief filed with the Supreme Court on October 30, which urges the Court to hear a case regarding the constitutionality of Arizona’s recently enacted, near-absolute ban on abortions after 20 weeks.

The brief argues in favor of the Arizona law, on the ground that many women who choose to have abortions at this stage in their pregnancy, do so after learning that their fetus may be born with a disability.

Photo of a young girl with blonde hair and glasses who has Down Syndrome
Devastating Loss

“It is now widely reported that the increase in prenatal screening has resulted in sharply declining numbers of living persons with disabilities such as Down syndrome, cystic fibrosis, and spina bifida,” the brief states. “To a society that values the richness and diversity brought by people with disabilities … these numbers reflect a devastating loss.”

The brief, written by the Bioethics Defense Fund, is on behalf of the Jerome LeJeune Foundation, Saving Downs and the International Down Syndrome Coalition.

Though few major disability rights groups have taken public stances on abortion, the issue has become highly charged among advocates for people with Down syndrome. Some studies have found that as many as 90 percent of expectant mothers choose to have an abortion upon learning their fetus is diagnosed with Down syndrome, despite dramatic improvements in life expectancy for this population.

In the brief, the amici assert that the Arizona law promotes the government’s interests in disfavoring so-called “disability-selective abortion,” drawing a clear line against “postnatal eugenic infanticide,” and “preserving the integrity and ethics of the medical professions.”

Under the Supreme Court’s 1992 decision Planned Parenthood v. Casey, states cannot ban abortions before viability, which normally occurs at about 24 weeks. The Arizona law directly contradicts this precedent, by pushing this line back to 20 weeks.

Even after this stage, however, the Supreme Court has stated that there must be exceptions to protect the life of the mother, as well as to prevent serious health risks.

For the amici, these should remain the only exceptions.

“Amici urge this Court to grant certiorari so that it may definitively clarify that there is no constitutional right to abort children because they have been detected to have a disability,” the brief states.

If the Supreme Court does decide to hear the case, then the U.S. Circuit Court of Appeals for the 9th Circuit decision to strike down the law will hold.

The issue of so-called disability selective abortion was not discussed in that decision.

One response to “Down syndrome groups weigh in on Arizona abortion debate

  1. Thank you covering this important disability rights initiative.

    The joint press release can be read at

    The U.S. Circuit Court of Appeals for the 9th Circuit did discuss disability selective abortion in their decision. That is the main basis of the Amicus Brief, which includes the following details:

    “..the Ninth Circuit panel opinion reasoned that the emergency health exception was insufficient to save the statute in part because “the emergency procedure does not authorise abortions in cases of fetal anomaly … which do not pose an immediate threat to the woman’s health.”

    “Most striking, the concurring opinion of Judge Kleinfeld opined that “birth of a severely deformed child is highly likely to impair all of a mother’s bodily and mental functions for the rest of her life, because of the extraordinary burdens the child’s disabilities and illnesses will likely cause a loving mother to suffer.”

    “He concluded that there must be a constitutional right to terminate such children before birth, because their birth would result in “[a] hellish life of pain …for both mother and child.”

    The brief goes into that in more detail, in terms of how that court has tried to provide for a lower level of legal protection on the basis of disability. That makes this a civil rights issue for the Down syndrome community, who expect equal treatment under the law.

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