Abortion opponents are pushing to enact more state bans modeled after a new law in Indiana that makes it illegal to abort a fetus because it would be born with a disability.
The Indiana law, signed by Republican Governor Mike Pence last week, bars abortions when the woman is seeking to terminate solely because her fetus is expected to have a physical or mental disability, including Down syndrome. Women in that situation could still obtain abortions, as long as they had other reasons for doing so.
Still, conservative advocacy groups say the law sends an important message — and they’re pushing it as part of a package of other abortion restrictions, dubbed the “Infants’ Protection Project.”
“We’ve distributed this widely, and there’s been a lot of interest,” said Kristi Hamrick, a spokeswoman for Americans United for Life.
The Susan B. Anthony List, a leading advocacy group opposed to abortion, said similar bills could be picked up in Arizona, Kansas, Missouri, Ohio, Oklahoma, and South Dakota. “I think you are going to see more of this,” said David Prentice of the Charlotte Lozier Institute, the group’s research arm.
That worries supporters of reproductive rights.
In practical terms, the law might not stop a woman from obtaining an abortion, said Elizabeth Nash, a state policy expert at the Guttmacher Institute, a think tank that supports abortion access. But it will require providers to press patients on their reasons for such a personal, and often painful, decision. “It starts us down a very dangerous path,” Nash said.
She also said she feared other states might follow suit. Indiana often serves as “a bit of a testing ground for abortion restrictions of all kinds,” Nash said.
Several states already have laws that bar women from seeking abortions because of the fetus’s gender. And North Dakota, like Indiana, bans abortions because of fetal disability. Indiana’s law, however, is among the broadest; it also outlaws abortions based on race, gender, color, national origin, or ancestry.
James Owens, a spokesman for NARAL Pro-Choice America, said he sees Indiana’s law as “part of a concerted national plan to chip away at the constitutionally protected right to abortion.”
The Indiana law also fits in with another trend: It mandates that doctors give specific information about alternatives to abortion to pregnant women who receive distressing diagnoses.
If their fetus is diagnosed with a fatal disorder, for instance, pregnant women in Indiana, by law, must receive information about about perinatal hospice care. Such programs help women through their final months of pregnancy, as well as the child’s birth and death.
Kansas, Arizona, Minnesota, and Oklahoma also require counseling on perinatal hospice options, according to the Guttmacher Institute.
And 16 states now mandate that women with prenatal diagnoses of Down syndrome must be given information about the support services that will be available to them should they carry the child to term, according to Guttmacher.
The politics of these counseling laws are more subtle. The Guttmacher Institute doesn’t consider most of them to be anti-abortion; instead, they’re seen as educational efforts to make sure parents know all their options and understand what life could be like for their child.
Down syndrome advocates, who strongly support the laws, say that’s all they want for the parents, too.
“We are concerned that people are making decisions based on old, outdated information,” said Sue Joe, a spokeswoman for the National Down Syndrome Congress. “So much of that information is biased toward the negative. We hear from parents that doctors are telling them their child will never walk or talk, for example.”
But some of the laws’ supporters have made it clear that they’d like to discourage abortions of fetuses who will be born with Down syndrome. Kondrich, for example, laid out his case in a 2011 article with a provocative headline: “Why the devil uses abortion to eliminate Down syndrome.”
And in some states — namely, Indiana, Louisiana, and Texas — the information the state puts together for parents does not discuss abortion as an option, Nash said.
Even when the information is complete, some medical ethicists are troubled by the idea that such counseling is mandatory, whether parents ask for it or not.
“By making it mandatory, you’re getting into personal values — decisions that should be up to you, as reproductive decisions,” said Arthur Caplan, a professor of bioethics at New York University. “You should be able to decide, ‘Fine. I don’t want to have a Down’s child,’ or, ‘Okay, tell me more about Down’s children.'”