Life Legal filed a friend-of-the-court brief last week urging the Supreme Court to overturn its deadly rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The brief was filed in a case challenging an Arkansas statute prohibiting doctors from performing abortions if they know the abortion request is motivated solely by a pre-natal diagnosis of Down syndrome.
In 2019, Arkansas passed the “Down Syndrome Discrimination by Abortion Prohibition Act,” to prevent the eradication of persons with Down syndrome and to counteract the stigmatizing message conveyed by abortions targeting those diagnosed prenatally with Down syndrome. The legislative record supporting the bill was replete with studies and anecdotal evidence demonstrating the medical profession’s bias toward encouraging abortion where there is a prenatal diagnosis of Down syndrome, with “counseling” slanted toward emphasizing potential burdens and worst-case scenarios. As a result, the estimated abortion rate of children with Down syndrome is 67%, with some studies showing as high as 93%. In one study, 24% of mothers who had given birth after a prenatal diagnosis of Down syndrome reported that they carried their pregnancies in the face of “medical professionals’ insistence” that they abort.
But before the law could go into effect, it was challenged by an Arkansas abortion clinic and abortionists, and the Eighth Circuit struck it down because it operated as a complete ban on some pre-viability abortions, which, the court held was contrary to the Supreme Court holdings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the two landmark decisions enshrining a right to abortion in the Constitution.
Arkansas is asking the Supreme Court to take the case and clarify that Roe and Casey do not prohibit abortions restrictions supported by a “compelling interest” – in this case, the state’s interest in eliminating discrimination and preventing the stigmatization of those with Down syndrome.
While agreeing with Arkansas that its law is constitutional and the Eighth Circuit’s decision should be reversed, Life Legal’s brief does not stop there. We argued that, rather than getting bogged down in arguments about discrimination and compelling interests and how those concepts fit into the current legal landscape surrounding abortion, the Court should take the case to overrule Roe and Casey altogether. If Arkansas has a compelling interest in prohibiting “discriminatory” abortions sought on the basis of a Down syndrome diagnosis, doesn’t it also have a compelling interest in prohibiting all abortions as discriminatory against the unborn?
Pro-life advocates should no longer serve as enablers of the Supreme Court by pretending that the Court’s abortion jurisprudence is fixable, if only enough distinctions and clarifications are made. Roe and Casey were wrongly decided. Until they are overruled, there will be more legal chaos – and worse, there will be more dead babies.”