Down syndrome in the courts

Bonnie Goodwin’s 32-year-old son Colin lives down the road from her in a two-bedroom bungalow that he rents from his sister and brother-in-law because they know he’ll take care of it. He’s going on 11 years as an employee at a St. Louis, Mo., retirement home called Friendship Village, where he cleans five hours a day, Monday through Friday. Last year, the home awarded him an exceptional caregiver award, a service pin, and a $100 bill. He makes his meals in a crockpot, uses a credit card, goes bowling, and has taken dance and singing classes. He calls Goodwin to check on her every morning and evening.

Colin is one of the estimated one in 1,490 people in the United States with Down syndrome. But that number could be higher: Studies suggest that 67 percent of pregnancies with a positive Down syndrome diagnosis end in abortion. Pro-life advocates around the country have worked to pass bills protecting infants with the diagnosis from discriminatory abortions. On Wednesday, the 8th U.S. Circuit Court of Appeals blocked such a law in Missouri, but some hope the Supreme Court will make strides to protect people like Colin.

Goodwin said she was devastated when she read the Missouri Right to Life email about the 8th Circuit decision: “It was going to protect our kids.”

But split circuit decisions increase the likelihood the Supreme Court will weigh in. In April, the 6th U.S. Circuit Court of Appeals ruled in favor of an Ohio law protecting babies from abortions based on a Down syndrome diagnosis. This ruling deviated from previous decisions out of the 7th and 8th Circuits striking down similar legislation in Indiana and Arkansas. “We’re actually very excited about the split,” said Sue Swayze Liebel, the state policy director for the Susan B. Anthony List. “That is exactly what the United States Supreme Court is looking for.”

The Supreme Court in 2019 let stand the 7th U.S. Circuit Court’s ruling blocking a 2016 Indiana law that would have prevented abortions of babies based on their gender, race, or a disability such as Down syndrome—a bill that Liebel lobbied for and helped craft when she worked for Indiana Right to Life. But the court did not rule on the constitutionality of the law, leaving that question open for a future case.

“Although the court declines to wade into these issues today, we cannot avoid them forever,” Justice Clarence Thomas wrote in his concurring opinion. “Having created the constitutional right to an abortion, this court is dutybound to address its scope.” He warned that giving the Supreme Court stamp of approval to abortions on the basis of race, sex, or disability, would make the procedure a tool for modern-day eugenics.

“That has become kind of a rallying cry in the states to protect especially babies with disabilities,” Liebel said.

States took that decision as an open invitation to explore discrimination protections for the unborn. Since then, Liebel said there’s been an uptick in these kinds of bills. Now 16 states have laws banning certain eugenic abortions, and 12 of those specifically protect babies with a Down syndrome diagnosis. Arizona and South Dakota passed their laws just this year. A similar bill passed in North Carolina last week but likely won’t receive the pro-abortion governor’s approval. The Pennsylvania House voted last week in favor of yet another.

Liebel said states are asserting their interest in protecting the lives of babies—even before they’re considered capable of surviving outside of the womb. That’s why pro-lifers interested in preventing eugenic abortions have their eyes on the Dobbs v. Jackson Women’s Health Organization case the Supreme Court will take up in the fall. The justices will consider whether it’s always unconstitutional to limit abortions before the baby is considered viable. The decision will either hurt or help protections for babies with Down syndrome.

With that upcoming Supreme Court case, Goodwin is hopeful for the rights of people like her son. But the 8th Circuit Court’s ruling still hurts her by suggesting Colin’s life isn’t worth living. She said he is the only one of her five children who never slammed his bedroom door and the only one who would clean the house to show he was sorry. Court decisions like this one make her want to “get on TV and say, ‘Wait a minute! Look at this kid! He does better than some of my older children,’” she said, laughing. “He’s got some characteristics they never got.’”