Attorney General Curtis Hill Jr. submitted a legal filing Friday on behalf of Indiana supporting Ohio's efforts to restrict a woman's right to abortion based on the reason why the woman wants to terminate her pregnancy.
Federal courts repeatedly have held states cannot limit a woman's abortion access prior to fetal viability, or approximately 24 weeks gestation — a standard left undisturbed by the U.S. Supreme Court in June when it declined to overturn lower court rulings striking down a 2016 Indiana abortion restriction similar to Ohio's.
Nevertheless, Hill, a Republican, argues in a "friend of the court" brief filed at the federal appeals court in Cincinnati that states should have the right to limit abortion based on the woman's reason for choosing the procedure to prevent eugenic targeting of certain characteristics.
"Technological advances have heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability," Hill writes, quoting Justice Clarence Thomas' concurring opinion in the Indiana case.
The Ohio law prohibits doctors from performing an abortion with "knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of" a Down syndrome diagnosis.
The 2016 Indiana statute, enacted by now-Vice President Mike Pence, required a pregnant woman who learned her child would be born with Down syndrome, another genetic disease or physical deformities that weren't immediately lethal, to carry the pregnancy to term and give birth.
An Indiana doctor who performed an abortion knowing the woman's motivation for terminating her pregnancy was due to a diagnosis, or potential diagnosis, of a genetic fetal anomaly or disability risked losing his or her medical license and could be subject to civil financial penalties under the law.
The Supreme Court said the question of whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions was not yet ripe for a ruling, since no other circuit courts have yet to consider the constitutionality of such restrictions.
Hill suggested a decision by the full appellate court in Ohio in favor of the state's Down syndrome abortion prohibition immediately could send the issue of "discriminatory" abortions back to the nation's high court for a final, nationwide ruling.