Legal experts — including a Brigham Young University professor — have labeled the Down syndrome abortion bill before the Utah Legislature as all but certainly unconstitutional.
Physicians point out it needs to be clarified and even then would limit their ability to have open conversions with their patients.
And data suggest few Utah women seek an abortion for a Down syndrome diagnosis in the first place.
Nevertheless, HB205 — which would criminalize doctors who perform an abortion if the sole reason was Down syndrome — has so far cleared every hurdle in the Utah Legislature and is awaiting final approval on the Senate floor. The current sessions ends Thursday at midnight.
Conservative lawmakers and anti-abortion groups argue some of the bill’s practical pitfalls shouldn’t matter: This is a message, they say, that aborting a fetus with the genetic disorder is unacceptable.
The bill is “Utah’s message to the world that we will not tolerate discrimination,” sponsor Rep. Karianne Lisonbee, R-Clearfield, said at a hearing last week. She also frequently says the bill is intended to ward off eugenics.
Here’s what you should know about HB205, also known as the Down Syndrome Nondiscrimination Abortion Act.
Why was HB205 introduced, and what does it do?
In a news conference on the first day of the legislative session, Lisonbee said she’d seen a concerning report that nearly 100 percent of Icelandic women whose fetuses test positive for Down syndrome terminate their pregnancies. Other European countries, she noted, have similarly high rates.
Lisonbee said she wanted to prevent a similar trend in Utah, she said. The genetic disorder occurs when a fetus has an extra 21st chromosome, resulting in intellectual disabilities and other physical problems after birth.
Lisonbee’s bill would bar Utah doctors from performing abortions based “solely” on a Down syndrome diagnosis. Those carrying out such a procedure would face prosecution for a class A misdemeanor.
The measure also requires a doctor to give the woman information about Down syndrome parent support groups and to refer her to a physician who is a Down syndrome specialist.
While opponents portray the bill as an effort to restrict a woman’s access to abortion and her right to choose, Lisonbee and others say it would protect a vulnerable group of people and combat a “terrible form of discrimination.”
“Looking at history, I have to ask, if we don’t take a stand against the selective purging of one portion of our society from the start, will we continue our silence when the next undesirable segment is purged, and the next? Until only the perfect race remains?” Lisonbee asked her colleagues at a Senate hearing.
“I know my conscience will not allow me to do that,” the conservative lawmaker said. “I will fight for the diversity of humanity in our society.”
If it passes, would it face legal challenges?
In all likelihood, it would — and state taxpayers would be on the hook for legal defense costs.
Shortly after HB205’s introduction, legislative attorneys posted a rare warning to lawmakers that it faced “high probability of being declared unconstitutional by a court.”
“If we pass this bill, we are buying ourselves a lawsuit,” Rep. Brian King, D-Salt Lake, echoed at a hearing in late January. King reminded his colleagues that Roe v. Wade, the U.S. Supreme Court case that affirmed a woman’s right to an abortion under the 14th Amendment, remains “the law of the land.”
A BYU law professor, Frederick Mark Gedicks, also recently weighed in with a letter to legislators sent at the request of Planned Parenthood of Utah. Gedicks — who has taught classes covering the Fifth and 14th amendments for more than 30 years — told lawmakers that provisions of HB205 criminalizing Down syndrome abortions would “almost certainly” be found unconstitutional by a court.
He also cited Roe v. Wade as well as Planned Parenthood v. Casey, a 1992 decision that laid out the “current contours” of a woman’s right to choose prior to viability, or the time in pregnancy when a fetus is able to live outside the womb.
“An abortion regulation is unduly burdensome if its ‘purpose or effect’ is to place ‘a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,’ ” Gedicks wrote of the Casey decision.
While the law professor noted that he personally supports the moral goals of HB205, he said this sympathy “cannot alter the constitutional reality.”
Meanwhile, the American Civil Liberties Union of Utah has calledHB205 a “calculated and unconstitutional attack designed to burden women, scare doctors, and chip away at Roe v. Wade.”
Defending a lawsuit in court would likely be costly for Utah. In 2007, the Utah attorney general’s office estimated the legal costs for defending a more sweeping abortion ban would run about $1.3 million — with other estimates coming in millions of dollars higher.
The progressive-leaning Alliance for a Better Utah sent a request last month to Utah Attorney General Sean Reyes for estimated costs to defend the Down syndrome bill in court, but the group said last week it has yet to receive a response.
The entire article by Luke Ramseth of the Salt Lake Tribune found here.
