On 19 May 2021, Governor Greg Abbott of Texas signed into law one of the US’ most restrictive abortion measures, banning the procedure after only six weeks of pregnancy. Also known as the ‘heartbeat bill’, the legislature is this close to an outright ban on abortion, as many women are not aware they are pregnant at the six-week mark. Many other states in the country have passed such bans, but in Texas, things have become even more brainless.
“Ordinarily, enforcement would be up to government officials, and if clinics wanted to challenge the law’s constitutionality, they would sue those officials in making their case. But the law in Texas prohibits officials from enforcing it,” writes The New York Times. Instead, the State Legislature TX SB8 allows any private citizen—including those from outside Texas—to sue doctors or abortion clinic employees who would perform or help arrange for the procedure. The bounty? At least $10,000 per illegal abortion if they are successful, paid by the clinics themselves.
Citizens laying down the law instead of the state of Texas and being rewarded for it? Sounds like a modern adaptation of a Western movie set in 1880, and I don’t mean that as a compliment. The law will take effect on 1 September 2021, and until then, the fight for its obstruction looks near impossible. In simpler terms, it’s hard to know whom to sue in order to block it, and lawyers for clinics are now wrestling with what to do about it. Meanwhile in other states, six-week bans have all been blocked as they make their way through the court system.
While abortions have long been a controversial topic in America, it was, at least temporarily, laid to rest following the Supreme Court’s 1973 Roe vs. Wade decision, which granted women across the US the right to abort their pregnancy up until the point of fetal viability—which usually occurs after 24 or 25 weeks. Over the past decade however, pro-life activists, also known as the anti-abortion movement, have scored major victories in state legislatures.
“The 2021 legislative season has set the record for the most abortion restrictions signed in a single year in the United States, according to the Guttmacher Institute, which tracks abortion statistics and supports abortion rights,” writers The New York Times. With conservatives making up its solid majority, the Supreme Court has shifted too.
Not only is this new law backwards to say the least, it also undermines democracy in the country. In an open letter published this spring, more than 370 Texas lawyers called the law an “unprecedented abuse of civil litigation,” and said it could “have a destabilising impact on the state’s legal infrastructure.”
“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorised to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” Melissa Murray, a law professor at New York University, told The New York Times.
In this instance, private enforcement is not in support of state enforcement; it is in lieu of it, a switch that surely cannot be good for democracy. Lawyers for the Texan clinics argue that a six-week abortion ban is clearly unconstitutional, and that the Texas law is designed to insulate the state from a challenge. Federal protection currently extends to pregnancies up to the point at which a fetus can sustain life outside the womb, about 23 or 24 weeks. The new law, if it takes effect, will make deciding constitutional rights issues much harder.
As of now, abortion is still legal in Texas. But the letter of the law isn’t nearly as powerful as the legal environment Texans now live in when it comes to abortion. SB 8 may not pass legal review, but it doesn’t have to—not if shaming and coercing people is the point. That’s already standard practice in the state.
Are abortion laws concerning Down syndrome (DS) outdated? Heidi Crowter, a 26-year-old woman with DS from Coventry, England, seems to think so. She believes the law which allows abortions up to the end of the final trimester, of babies with Down syndrome is “downright discrimination” and is now taking legal action against the UK government. Crowter is challenging legislation alongside Maire Lea-Wilson, a mother of two from West London whose son, Adian, also has the condition. Lea-Wilson hopes the legal challenge will remove “a specific instance of inequality of the law.”
In England, Scotland and Wales, there is a general 24-week window in which you can legally have an abortion. However, terminations can be permitted up until birth if there is “a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.” Controversially, this criteria also includes Down syndrome.
Crowter, Lea-Wilson and their lawyers will argue at the two-day court hearing—expected to finish on Wednesday 7 July—that the current laws as they stand are unlawfully discriminatory. Their comments come after the UN Committee on the Rights of Persons with Disabilities urged the British government to update its laws on abortion.
In a statement, Crowter said that “the law says that babies shouldn’t be aborted up to birth, but if a baby is found to have Down’s syndrome it can be aborted up until birth. This is the current law in the UK and I think it’s not fair. People like me are considered ‘seriously handicapped’ but I think using that phrase for a clause in abortion law is so out of date.”
Down syndrome remains the most common chromosomal condition diagnosed in the US. Each year, about 6,000 babies born in the country have Down syndrome. This means that the genetic disorder occurs in about one in every 700 babies. In the UK, about 750 babies are born with Down syndrome every year and there are an estimated 40,000 people in the country living with the condition.
According to the campaign group Don’t Screen Us Out, the latest figures report that 90 per cent of babies who are prenatally diagnosed with Down syndrome are absorbed. On its website, it states: “As National Institute for Health and Research RAPID evaluation study projects, 102 more children with Down’s syndrome would be detected due to the implementation of second-line cfDNA screening (NIPT – non-invasive prenatal testing), 92 of these babies would be aborted.”
The campaign group argues that this “would have a profound long-term effect on the population of the Down’s syndrome community, and enable a kind of informal eugenics in which certain kinds of disabled people are effectively ‘screened out’ of the population before they are even born.”
In many nations across Europe, including the UK, the termination rate after a prenatal Down syndrome diagnosis has risen to more than 90 per cent. In Iceland, where prenatal testing is widespread, one geneticist told CBS, “We have basically eradicated, almost, Down syndrome from our society.” In Denmark, where all pregnant women are offered screening scans, the disorder is heading for “extinction” according to The Copenhagen Post. This is in stark juxtaposition with Ireland, one of the few Western European countries where a disability like Down syndrome is still commonplace after, only recently, did the nation vote to reverse the country’s strict constitutional restrictions on abortion.
This has become contentious in the already multifaceted public discourse and debate regarding abortion. On one hand, it could be argued that science has developed a way to pinpoint when Down syndrome may occur, giving the parent the insight—and more importantly the choice—to make their own decision about whether to raise a child with such disorders.
However, as much as I reside on the side of pro-choice in the ethics of abortion, scientists bragging how bringing a disorder to “extinction”—a disorder which people can still have a decent quality of life by having, may I add—doesn’t quite sit right with me. It feels like somewhat of a slippery slope into dystopian eugenics.
It’s important to consider the Down syndrome community when weighing in on this complex debate. One mother of a ten-year-old with DS told a reporter that she worries her son’s community is “being wiped off the face of the Earth with abortion.” Likewise, Crowter herself believes that being labelled as “seriously handicapped” is out of date and misrepresentative of her condition.
Who’s right? To be completely honest, I don’t know. I don’t have Down syndrome, I can only chime into this discussion from a limited, external level and thus, my personal opinion is somewhat superfluous. What is more apparent is that this debate is not just about prenatal testing but about personhood—it’s about whether Down syndrome should be considered a condition or a disease. We’ve come a long way since the 1980s where people with Down syndrome were heavily discriminated against and labelled with the ‘mongoloid’ slur. We’ll find out whether the UK government believes it’s time to change its position this week.