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Say It Ain’t Roe: Dobbs and Reason Bans Are Trojan Horses for the Down Syndrome Community

By Calvin Lee. Full Text. 

In recent times, one of the most in vogue methods for curtailing abortion rights has been through the enactment of “reason bans,” statutes precluding abortions if the procedure is being sought due to the sex, race, or potential genetic abnormality of the fetus. This Note focuses on the contemporary litigation and discourse concerning reason bans’ genetic abnormality prong. In the immediate lead-up to the Supreme Court’s ruling in Dobbs, several reason ban statutes faced facial challenges in federal court, with the plaintiffs alleging that the statutes violated Casey’s undue burden standard by imposing categorical prohibitions on pre-viability abortions. Reason ban proponents argued that the statutes’ incursions into pre-viability gestational periods was justified by the additional state interest of preventing “eugenic” medical practices. The federal suits created a circuit split, with the Sixth Circuit upholding reason bans’ constitutionality, while the Seventh Circuit set aside the challenged legislation, and the Eighth Circuit granted an en banc rehearing with no decision released yet.

Then in June 2022, the Supreme Court in Dobbs simultaneously overturned Roe and Casey, turning its back on half a century of federal jurisprudence and shifting the abortion battleground to state court. This Note begins by tracing the Court’s abortion decisions before briefly addressing the flawed rationale utilized by Dobbs to justify abandoning Roe and Casey. This remains an important exercise, as many state courts utilize principles from Roe and Casey in evaluating the constitutionality of abortion regulations. This Note will proceed to analyze the previous circuit split, highlighting the lessons that state courts can implement from the reasoning in each of the federal appellate decisions.

To conclude, this Note will argue that state courts should follow the Seventh Circuit in voiding challenged reason ban statutes. To support this position, this Note describes how recent developments in genetic technology make reason bans an obsolete restriction for states not imposing an absolute ban on abortion. This Note will then expound upon the unconstitutional burdens imposed by reason bans, including the perverse dismantling of the physician-patient relationship, inhibiting pregnant individuals’ access to crucial health information, and the amorphous nature of potential criminal prosecutions for physicians alleged to have violated the statute’s prohibition. These burdens are in no way mitigated by interests in preventing “eugenics,” as genetic testing is readily distinguishable from past atrocities. Finally, this Note will attempt to demonstrate that despite the impassioned statements of conservative legislatures, reason bans critically undermine Down Syndrome interests, which are better served through alternative statutory schemes such as Pro-Information legislation.