BDF Amendment Prohibits Disability-Selective Abortion Discrimination in State-Sponsored Down Syndrome Materials
May 30, 2014. Today, Governor Bobby Jindal signed Louisiana H.B. 1058, a bill that mandates the state department of health to create published and web-based materials designed to provide information on medical statistics and support for use by an expectant parent who receives a prenatal test result for Down syndrome.
H.B. 1058 was introduced by Representative Joe Harrison, the proud grandfather of a baby who has the genetic variation known as Down syndrome, for the purpose of providing supportive information to parents to help them prepare for the birth of their special child.
Rep. Harrison supported the addition of the BDF-drafted amendment which provides that state-sponsored materials “shall not engage in discrimination based on disability or genetic variation by explicitly or implicitly presenting pregnancy termination as a neutral or acceptable option when a prenatal test indicates a probability or diagnosis that the unborn child has Down syndrome or any other health condition.” HB 1058 was then passed unanimously in both the House and Senate.
BDF attorney Dorinda Bordlee said, “The Americans with Disabilities Act sets forth a national standard that prohibits discrimination against any class of individuals with disabilities. It would therefore be discriminatory for State-sponsored materials to suggest that ‘pregnancy termination’ is an appropriate response to the class of individuals identified in prenatal testing as having Down syndrome.”
BDF President Nikolas T. Nikas said, “As we explained in an amicus brief to the U.S. Supreme Court, abortion jurisprudence has never protected and should never protect disability-selective abortions.” The BDF amicus brief on behalf of three Down syndrome organizations explained:
Aborting children with disabilities is a form of discrimination that threatens to devalue the lives of people born and living with disabilities. A recent Inquiry conducted by the British Parliament echoed similar concerns about the practice of aborting children with disabilities, and observed its inconsistency with the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. The practice of disability-selective abortion is closely parallel to the widespread practice of sex-selective abortion in non-western countries, which was recently condemned by the European Parliament as “ruthless sexual discrimination” and “gendercide.” The practice of aborting children with disabilities is no less discriminatory, and the State … may enact reasonable restrictions to curtail this practice.
BDF brief amicus curiae in Horne v. Isaacson, No. 13-402 (U.S. Sup. Ct., filed October 30, 2013).
Bordlee explained the important distinction between privately funded booklets and state-sponsored booklets. “When a private physician offers materials that present ‘termination’ as an option to the parents of an unborn child with Down syndrome, many parents feel that their child has been devalued. However, when a state law mandates that physicians offer such materials to parents expecting a child who has Down syndrome, it then rises to the level of state-sponsored discrimination in violation of the Americans with Disabilities Act. This is evidenced by the fact that materials highlighting the ‘termination’ option are not mandated by the state when the prenatal test indicates that the child will be free of disabilities.”
Nikas said, “Several countries have laws and state-sponsored programs that systematically encourage prenatal screening to identify and terminate unborn children with Down syndrome. Bioethics Defense Fund supports the efforts of Down syndrome groups who rightly identify these efforts as state-sponsored discrimination. It is important that bills introduced in the United States aimed at providing parents with support information don’t fall into the trap of unintentionally engaging in state-sponsored discrimination by offering ‘pregnancy termination’ as an acceptable option.”
Below is the operable text of the Louisiana law, which can be viewed in full here: La. H.B. 1058
A. The department shall identify current, evidence-based, written information concerning Down syndrome that meets all of the following criteria:
(1) Has been reviewed by medical experts and national and local Down syndrome organizations.
(2) Is designed for use by an expectant parent who receives a prenatal test result for Down syndrome or a parent of a child who receives a diagnosis of Down syndrome.
(3) Does not engage in discrimination based on disability or genetic variation by explicitly or implicitly presenting pregnancy termination as a neutral or acceptable option when a prenatal test indicates a probability or diagnosis that the unborn child has Down syndrome or any other health condition.
(4) Is culturally and linguistically appropriate for potential recipients of the information and includes all of the following:
- Information addressing physical, developmental, educational, and psychosocial outcomes, life expectancy, clinical course, and intellectual and functional development and treatment options for individuals with Down syndrome.
- Contact information for national and local Down syndrome education and support programs and services, including information hotlines, resource centers,
B. With respect to public information concerning Down syndrome, thedepartment shall do all of the following:
(1) Provide the information identified pursuant to Subsection A of this
Section to healthcare facilities and healthcare providers that furnish prenatal care, postnatal care, or genetic counseling to expectant parents who receive a prenatal test result for Down syndrome and parents of a child diagnosed with Down syndrome.
(2) Make available the information identified pursuant to Subsection A of this Section on its Internet website.
C.(1) Upon receipt of a positive result from a test for Down syndrome, a healthcare facility or healthcare provider shall provide to the expectant parent or the parent of the child diagnosed with Down syndrome the written information provided or made available by the department pursuant to Subsection B of this Section.
(2) All information provided pursuant to the provisions of this Section shall be culturally and linguistically appropriate for the recipient of the information, and shall not engage in discrimination based on disability or genetic variation by explicitly or implicitly presenting pregnancy termination as a neutral or acceptable option when a prenatal test indicates a probability or diagnosis that the unborn child has Down syndrome or any other health condition.
Contact: Nikolas T. Nikas, Bioethics Defense Fund, 504-231-7234, email@example.com