In a post-Dobbs world, previability abortion might be even more restricted—or not exist at all. So-called “eugenic” prohibitions will be the first past the constitutional post.
The Supreme Court recently agreed to hear Dobbs v. Jackson Women’s Health Organization, a case that will decide whether restrictions that states place on previability abortions are constitutional. Much commentary has focused on the real possibility the court will overturn Roe v. Wade. Less attention has been paid to another, potentially more likely outcome: The court could uphold Roe—and preserve constitutional protection for abortion—but create exceptions for previability bans. Indeed, that’s similar to what happened in Planned Parenthood of Southeastern Pennsylvania v. Casey, a decision in which the court preserved constitutional abortion rights, yet rejected Roe’s trimester framework and weakened protections for those rights.
Over the last year, states have enacted numerous previability restrictions: Texas just passed a law banning abortions at six weeks, to take one example. A different law that applies before viability has received less press, but is increasingly popular with anti-abortion legislators. Twenty states have adopted laws that prohibit abortions performed because of the fetus’s sex, race or disability. In a post-Dobbs world, where some previability abortion bans are permissible, these so-called “eugenic” prohibitions will be the first past the constitutional post.
Reason-Based Bans Have Been Gaining More Political Traction
Federal appellate courts are split on the constitutionality of reason-based bans after the Sixth Circuit upheld Ohio’s law prohibition on abortion because of a Down syndrome diagnosis. Reason-based bans apply throughout pregnancy, but Ohio’s law responds specifically to innovations in early prenatal genetic testing. With a non-invasive prenatal test, patients can detect a limited number of conditions, including Down syndrome, with a blood test administered during the first trimester of pregnancy.
The new conservative majority Supreme Court is poised to decide the question of whether a state can vet someone’s reason to end a pregnancy. In a 2019 concurring opinion, Justice Thomas, writing about a race-based ban, opined that to uphold such a law “would constitutionalize the views of the 20th-century eugenics movement.” Essentially, Justice Thomas argued that anti-abortion laws are on the side of equality and justice. And an increasing segment of the public appears to agree. Reason-based bans like Ohio’s “make sense” to people as the most recent Gallup poll reports. Almost 50 percent of people responded that abortions because of a Down syndrome diagnosis should be illegal.
That the Supreme Court might allow states to make criminals out of health professionals and possibly patients who choose to end a previability pregnancy is startling. But what is also troubling is how popular opinion favors substituting the state’s judgment for that of the pregnant person, at least in certain circumstances. Moreover, the poll’s question, as well as public discourse, doesn’t capture the complexity of the issues individuals face when their fetus is diagnosed with a genetic anomaly or another condition. Just asking whether abortion should be legal or illegal ignores how context—what support or needs does a pregnant person have or the stage of pregnancy—shapes abortion decisions.
Whether or not people feel equipped to raise and the meet the needs of children is something only they can discern. But in the case of prenatal diagnosis and abortion, new technology and states’ abortion animus are on a collision course. On the one hand, pregnant people are encouraged to learn as much about their pregnancies as early as possible. On the other, states are legislating to bar what people do with that information.
Reason-Based Bans Hide Behind a Facade of Equality—While Creating Injustice
Perhaps more saliently, criminalizing choice does not create the conditions for racial, gender and disability equality. And policing pregnant people’s decisions does not result in deeper inclusivity or greater acceptance of and support for people with Down syndrome, for instance. To the contrary, reason-based bans do nothing to assist potential parents and ignore the many considerations that drive people’s decisions to raise a child.
Instead, these laws incrementally advance an agenda of ending legal abortion for all reasons. Equating decisions to terminate a pregnancy with the state-sponsored eugenics gives cold comfort to anyone who receives a diagnosis of fetal impairment and further stigmatizes their choices. And make no mistake, there will be more reason-based bans: not being able to afford another child or the interruption of other life plans will be next on the chopping block, denounced as frivolous in comparison to an alleged state interest in protecting potential life or the health of the pregnant person.
Drawing the line for abortion restrictions at viability always has been a constitutional compromise; one that protected early abortion in exchange for recognizing that states could limit patients’ decision-making at some point in a pregnancy. Post-Dobbs, previability abortion might be even more restricted—or not exist at all. In either scenario, nationwide rights to abortion could be established by federal law.
One such proposal is the Women’s Health Protection Act, which soon will be introduced in Congress. The legislation would preempt state laws that ban abortion before viability and prohibit reason-based bans specifically. We may not be able to count on the Supreme Court to protect abortion rights. But we should demand laws more in step with people’s lived realities from our legislators.
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