The Department of Justice (DOJ) Civil Rights Division will argue in a federal appeals court today that the unborn have civil rights worthy of protection. Civil Rights Division Assistant Attorney General Eric Dreiband will be in the courtroom for Wednesday’s argument before the entire Sixth Circuit Court of Appeals, demonstrating the importance of the issue to the court as well as to pro-life voters.
At issue is an Ohio law that prohibits a doctor from performing an abortion if the doctor knows that it is due to the unborn child having Down syndrome.
A lower federal district court enjoined the law, and a three-judge panel of the Sixth Circuit refused to lift the injunction. Ohio, joined by the Justice Department, successfully petitioned for a full en banc hearing by the Sixth Circuit’s judges.
Federal civil rights laws already protect people with disabilities from discrimination. The DOJ contends that Ohio was justified in prohibiting abortions because of Down syndrome; its brief is trailblazing because it argues that unborn babies with disabilities enjoy civil rights protections under federal law.
This is territory that previous DOJ briefs barely explored, even during Republican administrations.
The contrast with Obama-era civil rights priorities also couldn’t be starker. Then-Attorney General Eric HolderEric Himpton HolderMichigan Republicans sue over US House district lines State courts become battlegrounds in redistricting fights New Hampshire Republicans advance map with substantially redrawn districts MORE’s disability rights litigation aimed at ensuring hot gluten free meals on campus, emotional support pigs on airplanes and the right to have cats in all Section 8 housing.
Under President Trump, Civil Rights Division priorities have moved from the trivial to the profound. The division has shifted attention from pets and hot oatmeal to questions of life with historical antecedents in the most wicked corners of the 20th century.
Assistant AG Dreiband said, “Ohio’s anti-discrimination law affirms that people with Down syndrome have lives worth living and protecting.”
Trump won the White House in part because Catholic voters in Pennsylvania, Michigan, Ohio and Wisconsin tipped his way. Unfortunately, having children with Down syndrome has increasingly become a “Catholic thing” because of the growing rate of targeted abortions.
The DOJ’s brief argues that the Ohio law “protects individuals with disabilities from prejudice and indifference, and the medical profession from harm to its integrity and reputation.” Referring to the evils of eugenics and other state-sponsored killing programs, the brief argues that Ohio’s law “wards against the slippery slope to medical involvement in race- or sex-based abortions.”
The position of the United States shifts the usual framing about abortion toward the pro-life movement’s strongest territory — namely, the question of whether the weakest should be targeted because they are weak. An unborn baby with Down syndrome is more vulnerable than even the unborn without Down syndrome. While approximately 18 percent of pregnancies in the U.S. end in abortion, studies have found that 80 – 90 percent of unborn babies diagnosed with Down syndrome are aborted.
If federal laws protecting persons with disabilities are on the books, why shouldn’t they protect unborn persons with disabilities too?
Of course, so much of the abortion debate is pre-programmed, with one side reflexively shouting, “Trust women!” or “My body, my choice!” and the other side responding in kind.
But the Ohio ban on targeted Down syndrome abortions highlights an appeal that has always been at the core of the pro-life movement. Its adherents consider their movement to be in the slipstream of the slavery abolitionists of 200 years ago and their fight for human dignity.
The Justice Department’s brief is not a procedural argument about clinic certification, admitting privileges, competing burdens or the checkboxes of informed consent from other court fights. Its brief is about the right not to be targeted for termination simply because of disability.
The Justice Department does not expound on the “slippery slopes” mentioned in its brief, but we all know what they are. In the 20th century, people with disabilities were targeted for eradication; eugenicists in England and the United States forced sterilization programs on the unwilling disabled.
The frenzy to erase people with disabilities reached a crescendo with the Aktion-T4 program in the Third Reich. Nazi propaganda made pocketbook appeals, noting that “60,000 Reichsmark is what this person suffering from a hereditary defect costs the People’s community during his lifetime,” so better to eliminate the problem in the first place than have everybody pay.
These are uncomfortable historical facts, but they cannot credibly be separated from the issue of targeting unborn babies with disabilities for termination.
On this point, foes of the Ohio law are at their weakest and most absurd. One brief opposed to the law filed by “disability advocates and academics” argues – without any hint of irony – that the Ohio law “does not improve the quality of the lives of and respect for people born with Down syndrome.”
Trump has demonstrated a mastery of teasing out the most absurd, most out of touch and, sometimes, most morally reprehensible positions of his foes. The Department of Justice support for Ohio’s prohibition on targeting the unborn with Down syndrome has managed to accomplish all three.
J. Christian Adams is a former Civil Rights Division attorney and author of a New York Times bestseller about the division, “Injustice” (Regnery, 2011). He is president of the Public Interest Legal Foundation, based in Indianapolis, which focuses primarily on election integrity issues and litigation.