A WOMAN'S CHOICE? THE CONSTITUTIONALITY OF DOWN SYNDROME ABORTION BANS AND THE BREAKDOWN OF THE DOCTOR-PATIENT RELATIONSHIP.

• Author: Scherer, Christine

CONTENTS INTRODUCTION I. ABORTION UNDER ATTACK IN THE UNITED STATES II. AN UNDUE BURDEN FOR SOME? RAISING A CHILD WITH DOWN SYNDROME III. STATE ACTION THUS FAR A. Indiana's Down Syndrome Abortion Ban B. Ohio's Down Syndrome Abortion Ban C. Where Do Other States Fall? IV. THE BREAKDOWN OF THE DOCTOR-PATIENT RELATIONSHIP A. What Is the Purpose of Informed Consent? B. Informed Consent in the Abortion Context C. Applying These Principles to Down Syndrome Abortion Bans V. OTHER CONSIDERATIONS A. Acceptance in Society B. Where Do We Draw the Line? Other Genetic Abnormalities and Abortion CONCLUSION INTRODUCTION

Each year in the United States, roughly six thousand infants are born with trisomy 21--a genetic disorder more commonly known as Down Syndrome. (1) In the United States, this genetic abnormality accounts for roughly one in 750 live births. (2) It is estimated that nearly 250,700 individuals with Down Syndrome currently live in the United States. (3)

The prevalence of Down Syndrome in the United States is strikingly different than that of Iceland. With a population of 333,000, Iceland typically has only one or two children born with Down Syndrome each year. (4) The reason, experts claim, is that Icelandic women's abortion rate for children with an in utero Down Syndrome diagnosis is nearly 100%. (5) Denmark has a similarly high abortion rate for in utero Down Syndrome diagnoses, at 98%. (6) The United Kingdom has a 90% abortion rate for in utero Down Syndrome diagnoses. (7) These high abortion rates have essentially eradicated Down Syndrome from these countries' populations. In comparison, the United States has a much lower abortion rate for an in utero Down Syndrome diagnosis, at 67%. (8)

Experts have expressed concern about the high abortion rates for Down Syndrome fetuses in Iceland and Denmark. Geneticist Kari Stefansson, whose company "has studied nearly the entire Icelandic population's genomes," said that the high abortion rate "reflects ... relatively heavy-handed genetic counseling.... [Genetic counselors] are having [an] impact on decisions that are not medical...." (9) Hulda Hjartardottir, head of the Prenatal Diagnosis Unit at Landspitali University Hospital in Iceland, argues that her genetic counselors attempt to be as neutral as possible, but concedes that for some, "just offering the [prenatal genetic] test is pointing [women] towards a certain direction." (10) Furthermore, in Iceland the medical community considers Down Syndrome a deformity, which legally allows for women to obtain an abortion later in gestation than would normally be permitted. (11)

Iceland and other European countries provide a unique look into the effects that making genetic screenings part of routine parental care can have on a woman's decision to abort a genetically abnormal fetus. As mentioned, the rate of abortion in the United States for Down Syndrome fetuses is much lower than some European countries. But studies have shown that women's attitudes toward prenatal genetic testing are becoming more positive. (12) There are two main reasons for this shift: first, these tests are available much earlier in a woman's pregnancy; and second, the tests are less invasive and safer for the fetus. (13) These studies indicate that pregnant women have a high interest in these earlier and non-invasive prenatal genetic tests. [14] It is therefore possible that, as non-invasive genetic testing becomes more widely available in the United States, abortion rates for Down Syndrome fetuses would increase in the United States as they have in countries like Iceland and Denmark.

The ethical conundrum that this increased rate of abortion presents in the United States is straightforward. On one hand, given our nation's history with eugenics and treating those with disabilities "differently and pejoratively," there is a state interest in now protecting those with Down Syndrome in our population. (15) Bioethicist David Wasserman argues that "[u]nlike people with obsolete skills, but like people of color, people with disabilities are not regarded as moral equals by the larger society, and the disadvantages they face reflect their devaluation." (16) But on the other hand, the right to privacy has been recognized as a fundamental right by the Supreme Court for decades. (17) The Supreme Court has recognized that a woman's choice to continue a pregnancy is so personal that she has the right, up until a certain point in gestation, to abort the fetus if she wishes. (18) Though the Supreme Court has ruled that the government can assert a preference through waiting periods and required physician speech, the ultimate decision is still with the woman. (19) Raising a child with a Down Syndrome diagnosis is much different than raising a genetically normal child, and many would argue the choice should remain with the woman.

Some states recently have determined that their interest in preserving the life of those diagnosed prenatally with Down Syndrome outweighs a woman's right to choose. These laws place criminal liability on physicians who knowingly perform abortion procedures for women who are seeking the procedure "in part" (20) or "solely" (21) because of a prenatal genetic diagnosis of Down Syndrome. It is crucial to consider how placing criminal liability on physicians may undermine how they interact with women seeking abortions. Such changes in the doctor-patient interaction likely result in an undue burden upon a woman's right to seek a pre-viability abortion. (22)

This Note will argue that Down Syndrome abortion bans are unconstitutional under the Planned Parenthood of Southeastern Pennsylvania v. Casey (23) undue-burden test because of the harmful impact they have on the doctor-patient relationship. Part I of this Note provides a background on the current abortion landscape in the United States and explores how the Supreme Court has defined an unduly burdensome restriction. Part II illustrates the changing landscape in prenatal medical technologies and argues that women can now choose to have abortions earlier and with less risk. Part III explores the language of different states' restrictions and what these restrictions would look like in practice. Part IV argues that imposing criminal liability on a physician based on a woman's subjective motivations to seek an abortion has the potential to seriously degrade the doctor-patient relationship and impede the ability for a woman to give informed consent. Finally, Part V briefly discusses other implications Down Syndrome abortion bans have on a woman's right to choose. These discussions lead to the conclusion that restrictive abortion bans on Down Syndrome fetuses are unconstitutional under the current legal framework.

1. ABORTION UNDER ATTACK IN THE UNITED STATES

   The legality of abortion in the United States has had a complicated history. The pivotal case Roe v. Wade, (24) decided in 1973, affirmed that abortion was protected under the fundamental right to privacy. (25) But the Supreme Court made clear that this right was not absolute. (26) Justice Blackmun noted that there came a point in a woman's pregnancy where the state's interest in life outweighed a woman's right to choose. (27) The Court therefore created the trimester framework, which allowed women to abort any time up until the third trimester. (28) During the third trimester, abortions were only permitted if there was significant risk to maternal health. (29)

   In 1992, the Supreme Court significantly altered the standard courts use to analyze abortion restrictions through its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. (30) The case arose as a challenge to Pennsylvania's restrictions on abortion which included requirements that women wait twenty-four hours after a consultation, provide spousal notice, and receive parental consent if under the age of eighteen. (31) In a plurality opinion written by Justices O'Connor, Kennedy, and Souter, the Court endorsed the basic holding of Roe, that a woman has a Fourteenth Amendment right to privacy that protects the right to choose to have an abortion. (32) However, the Court did away with the trimester framework in favor of a viability standard, which allows for the cutoff to change as medicine advances. (33)

   Significantly, Casey reaffirmed and recognized a state's interest in protecting unborn life and extended to the states considerable power to exercise this right. (34) In doing so, the Court established the undue-burden test for determining the constitutionality of state restrictions on abortions. (38) Of this test, the Court wrote, "a statute which, while furthering ... [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." (36) Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." (37)

   Since Casey, the Supreme Court has further defined the meaning of what is an "undue burden" in specific situations, but there is still confusion because little guidance has emerged on what types of restrictions constitute such an undue burden. (38) Though clear and convincing evidence of maternal health benefits is required to justify an abortion restriction, there has been little direction to show how strong or how scientifically certain the state's evidence must be to successfully overcome the undue-burden test. (39)

   In 2000, the Supreme Court applied the undue burden test to a state statute prohibiting partial birth abortions in Stenberg v. Carhart. (40) This case involved a Nebraska statue that criminalized partial birth abortions. (41) The statute in question defined a partial birth abortion as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before...