Court Rules Tennessee Can Enforce Abortion Ban Based On Down Syndrome Diagnosis

A growing number of states have passed so-called "reason bans" that target a patient's motivation for seeking an abortion.
Part of an anti-abortion law in Tennessee that bans abortion on the basis of race, sex or Down syndrome diagnosis is now in effect.
Part of an anti-abortion law in Tennessee that bans abortion on the basis of race, sex or Down syndrome diagnosis is now in effect.
Karen Pulfer Focht / Reuters

A Tennessee law outlawing abortion based on a patient’s reason for the procedure, including a potential Down syndrome diagnosis or the sex or race of the fetus, can take effect, a federal appeals court has ruled.

The measure, dubbed a “reason ban” by reproductive rights advocates, was part of an extreme anti-abortion bill signed into law by Gov. Bill Lee (R) in July.

The legislation was challenged by the Center for Reproductive Rights, the American Civil Liberties Union, Planned Parenthood Federation of America, and the ACLU of Tennessee on behalf of abortion providers in the state. The ban was in effect for less than an hour before it was blocked in court.

The ruling Friday by the 6th Circuit Court of Appeals allows the reason ban to go immediately into effect. Another part of the law, which would ban abortion at nearly every stage of pregnancy, starting as early as six weeks, remains blocked.

The groups that brought the lawsuit have asked the court for a temporary restraining order blocking the reason ban again, arguing that it is a violation of the constitutional right to abortion before viability.

“These bans are just another way anti-abortion politicians are attempting to limit the constitutional right to abortion care and to create stigma,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a statement. “Decisions about whether and when to continue or to end a pregnancy are best made by the individual and their family. We will continue to fight these bans in the courts.”

More than a dozen states have passed similar reason bans, said Elizabeth Nash, who tracks abortion regulations at the Guttmacher Institute, which advocates for abortion rights. Some of the bans have been blocked in the courts; others are currently in effect.

Four states, which as of now include Tennessee, prohibit abortions on the basis of genetic anomaly or Down syndrome diagnosis. Eleven states have a sex-selection ban in effect, and four have a race-selection ban in effect.

These types of bans put providers and patients in difficult situations because they force doctors to ask their patients about the reasons for their abortion, Nash said.

“This is far out of bounds of what you would consider compassionate health care,” she said. “You don’t interrogate people for their reason for an abortion, or other health care.”

Reason bans, which have risen in popularity in recent years, are part of a multi-pronged strategy by opponents of abortion rights to reduce access, she said.

“States are trying to ban abortion at lower gestational ages, trying to ban methods of abortion, trying to ban reasons of abortion ― really just trying to make it harder and harder to get an abortion,” she said.

Reason bans are particularly problematic because the emphasis is on the patient’s decision-making process, Nash added.

“Instead of looking at the patient’s needs and how to get them the care they need, it’s much more about questioning the motivations of the patient,” she said.

Hedy Weinberg, ACLU of Tennessee executive director, said the group would continue to fight for people’s ability to make their own decisions about pregnancy without political interference.

“This law is just another unconstitutional effort to ban abortion in our state,” Weinberg said in a statement. “It does nothing to address the serious concerns of those with disabilities in our community or to ensure that people living with disabilities and their families have access to health care and other services they may need.”

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