The Down Syndrome Gambit

March 9, 2018

In case you haven’t noticed, a few states (North Dakota, Indiana, Louisiana, and Ohio) have enacted laws that prohibit a physician from performing an abortion if the physician knows the woman is seeking an abortion because the fetus has been diagnosed with Down syndrome. Utah is considering a similar measure. Indications are this is the beginning of a major effort to curtail a woman’s right to choose whether to continue a pregnancy. 
From one perspective, these laws are just another in a series of attempts to chip away at abortion rights. However, they do have the virtue of indirectly confirming why women should have the right to an abortion for any reason, up until the late stages of a pregnancy.
In recent years, various states have already tried to restrict the scope of the right to an abortion by, for example, prohibiting abortions once the fetus (allegedly) feels pain or has a heartbeat or by requiring abortion clinics to meet spurious safety standards. Abortion opponents know that they can’t prohibit abortion completely, so instead they aim to make it difficult to impossible to have an abortion in a large number of cases. Fortunately, so far, the most restrictive laws have been struck down as unconstitutional. 
The Down syndrome laws represent a continuation of this line of attack, with one difference being that proponents of these laws are trying to secure the moral high ground by arguing that these laws are all about promoting the rights of the disabled. They want to prevent discrimination against those with Down syndrome. 
In reality, those pushing these bills are shedding crocodile tears over the plight of the disabled, as indicated by the fact that they have not increased funding for social and educational services for those with Down syndrome. Force the women to give birth and after that … well, after that, let’s discuss tax cuts.
But let’s leave aside the motives of those legislators enacting these bills. What I find interesting is how this type of legislation—unintentionally—shows the wisdom of allowing women to choose whether to continue a pregnancy.
First, step back a bit. Why is there still, over forty years after Roe v. Wade, such determined opposition to abortion by a large segment of the population? It has to do with the disputed status of the zygote/embryo/fetus, right? (Hereafter, to save words, I will just use “fetus” to refer to all stages of the entity, even though this is technically incorrect.) A significant number of people regard the fetus from the moment of conception forward as having the same moral status as a mature human being. Abortion is murder, as the slogan says. That belief rests, for many, on a religious world view, which is why it is impervious to counter-argument. If someone adamantly believes an invisible, immaterial soul is present from the moment of conception, no discussion of the properties of an early stage fetus compared with those of an adult or a two-year old is going to change their mind.
That said, to be fair, another reason why the soul theory continues to have adherents is there is no secular consensus about what gives any being moral status. Various suggestions have been put forward (sentience, rationality, self-consciousness, moral agency, a certain level of cognitive capacities, and so forth, or some combination of such factors), but they all present problems. (For example: Do infants have the same status as adults? Might some animals have greater moral status than some humans?) 
With respect to the fetus, I think it’s fair to say that many who are pro-choice are fuzzy about the status of the fetus, especially in the middle to late stages of pregnancy. Early stage up to several weeks—abortion doesn’t really present a significant moral issue. Last couple of months of a pregnancy—it’s an almost-baby and a woman should have a very strong reason (like her health/life is in danger) to have an abortion. In between—depends. A woman should have some reason other than a coin flip, but what counts as a sound moral reason depends on considering all relevant circumstances and the only person who can do that is the woman herself. 
The law is a blunt instrument. Because of its need to be administered efficiently and impartially, it deals in general categories, not nuances. The notion of a “law” that is tailored to each individual’s life is a contradiction in terms. But a decision whether to continue with a pregnancy that is in its fourth, fifth, or sixth month is inevitably a very personal decision.
The contrast between the law’s general categories and the personal circumstances involved in some abortion decisions is made manifest by these absurd laws prohibiting abortion when the physician “has knowledge” the request is made because of a diagnosis of Down syndrome. (Note: the North Dakota law prohibits an abortion if the request is made solely because of a diagnosis; the Ohio law prohibits an abortion if the request is made “in whole or in part” because of a diagnosis.) How is the physician supposed to obtain this knowledge? Cross-examine the woman as to her motivations? Hold a hearing with witnesses testifying to the woman’s comments about the pregnancy? Is a decision to have an abortion made “in part” because of a Down syndrome diagnosis if the woman would be willing to continue the pregnancy were there adequate social services for Down syndrome children?
Not to belabor the point, these laws are unenforceable. They should be and, I predict, will be struck down.
The absurdity of these laws is underscored by this fact: although the supposed purpose of the laws is to prevent discrimination, the laws actually result in fostering discrimination—against those fetuses that do not have a genetic defect. For fetuses diagnosed with chromosomal abnormalities, the woman must persuade the physician that her decision has nothing to with that diagnosis; for healthy fetuses, no reason for the abortion need be given. 
The Supreme Court’s decision in Roe v. Wade has been the target of criticism over the years, even from those who are pro-choice, on the ground that its reasoning is flawed and its use of “viability” as a dividing line between abortions the state can and cannot prohibit is arbitrary. But whatever the defects in its reasoning, its conclusion is basically correct. Until the last stages of a pregnancy—at which point the woman, presumptively, has had the opportunity to make her own decision about whether to bear the child—the state has no business in determining what counts a good reason for an abortion.