Paper signs were taped to trash cans and waste baskets around the Utah Capitol on Tuesday morning: “HB205 puts TAXPAYERS’ MONEY here,” they said, alongside a picture of Oscar the Grouch.
The signs were something of a guerrilla lobbying campaign against the controversial Down Syndrome Nondiscrimination Abortion Act. The bill would criminalize doctors who perform an abortion if the sole reason was Down syndrome.
HB205 was awaiting debate on the Senate floor.
It was not clear Tuesday who was behind the trash-can posters.
But opponents have repeatedly stressed the bill would likely be found unconstitutional by a court — even legislative attorneys said there was a high likelihood of this — and could potentially cost state taxpayers millions of dollars to defend.
Proponents say the bill is worth passing regardless, as a way to send a message that Utah is opposed to discrimination and “eugenics.”
A federal judge blocked a similar law passed in Indiana in 2016, and Ohio legislation passed last year was also recently challenged by several of the state’s abortion providers, who say the ban on Down syndrome abortions violates “well-established constitutional limits” outlining a woman’s right to choose.
Here’s more information on what’s behind the bill, and the arguments against it.
Feb. 27, 2018 — Bill to ban Down syndrome abortions passes Utah Senate committee
A Utah Senate committee on Monday approved legislation that would ban abortions sought because of a Down syndrome diagnosis, despite ongoing concerns a court would find it unconstitutional and other questions raised about its vague language.
The Senate Judiciary, Law Enforcement, and Criminal Justice Committee voted 3-2 in favor of HB205, which now heads to the full Senate.
“Social engineering is alive and well in Utah’s abortion clinics and doctors’ offices today,” the bill’s sponsor, Rep. Karianne Lisonbee, R-Clearfield, told the committee members, expressing her concern that too many fetuses with a Down syndrome diagnosis are being aborted.
The bill would impose criminal penalties on doctors who perform the procedure if they knew the sole reason was a diagnosis of Down syndrome.
”I will fight for the diversity of humanity in our society,” Lisonbee said, adding she sees the bill as Utah’s message to the world that “we will not tolerate discrimination.”
Nearly two dozen people spoke both in favor of and opposition to HB205 Monday. Many in favor were parents of Down syndrome children, and one woman has Down syndrome herself. All said their Down syndrome children had brightened their lives, and some pointed out that people with Down syndrome often lead productive lives and hold jobs.
Those in opposition included several medical professionals. An obstetrician said the bill would curtail open and honest discussions between a doctor and mother, who might not want to reveal the reason she is seeking an abortion.
Another doctor said the bill needed more clarifying language, regarding overly broad requirements that women be provided information about Down syndrome advocacy groups and to refer them to specialists on the disorder.
There also was discussion among lawmakers about a recent legal analysis by legislative attorneys indicating the measure would likely be found unconstitutional. Similar bills passed in Ohio, Indiana and Louisiana are all facing legal challenges, with a federal judge blocking Indiana’s law.
For committee member Sen. Lyle W. Hillyard, R-Logan, the issue is especially personal. He lost his 42-year-old son, Matt, who had Down syndrome, earlier this year; Matt had often joined his father at the Capitol and was a friend to many legislators.
On one hand, Hillyard said Monday, he wants to protect people with Down syndrome, calling them our “blessed children.” But on the other, he said, the bill needs some clarifying language, and he said he preferred to wait to see what happens in other states regarding constitutional challenges. Hillyard nevertheless voted in favor of the bill.
Feb. 5, 2018 — Controversial bill to ban Down syndrome abortions easily passes Utah House
The Utah House of Representatives on Monday overwhelmingly passed legislation that would ban abortions sought because the fetus was diagnosed with Down syndrome.
The House voted 54-17 in favor of HB205, which now heads to the Senate.
Legislative attorneys have analyzed the measure, sponsored by Rep. Karianne Lisonbee, R-Clearfield, and determined there is a high likelihood it would be found unconstitutional by a court.
But lawmakers did not discuss that possibility Monday.
“We need this law to protect individuals with Down syndrome from discrimination to ensure they have the right to exist,” said Lisonbee of HB205, which would impose criminal penalties on doctors who perform the procedure if they knew the reason was a diagnosis of Down syndrome — though it would not impose them on women seeking such abortions.
Legislators considered a failed amendment from Rep. Ray Ward, R-Bountiful. It would have required that the state pay more than $1.8 million annually to provide services for people with Down syndrome, many of whom are currently required to wait for those services for extended periods of time, he said.
Ward said the state has a responsibility to help parents if it intends to require them to give birth to a child with Down syndrome. His fellow legislators, however, decided Ward’s amendment wasn’t directly relevant to Lisonbee’s bill, and they scrapped it.
Shortly after HB205 passed the House, Democrats issued a statement saying they were disappointed that discussion on the bill was cut short. (The House only allowed time for Lisonbee’s presentation and discussion of Ward’s amendment.)
Democrats also lamented that there was no debate of the legal analysis indicating the measure would likely be found unconstitutional.
“[N]ever mentioned or debated in our shrunken discussion was anything about the cost to Utah taxpayers that will come with litigating, and most likely losing, the question of HB205’s unconstitutionality,” their statement said. “This is not a process that our House can be proud of.”
Ban doctors from performing an abortion if the sole reason is a Down syndrome diagnosis of the fetus. - Read full text
Jan. 27, 2018 — ‘If we pass this bill, we are buying ourselves a lawsuit’: A proposed abortion bill might be unconstitutional, but that’s not stopping Utah lawmakers
A contentious Down syndrome abortion bill moved forward in the Utah Legislature on Thursday, even after state attorneys reported a “high probability” that a court would find it unconstitutional.
House Bill 205 would bar a doctor from performing an abortion if the pregnant woman seeks the procedure after the fetus is diagnosed with Down syndrome.
“If we pass this bill, we are buying ourselves a lawsuit,” said Rep. Brian King, D-Salt Lake City, urging his colleagues on the Utah Judiciary Committee not to approve the legislation.
He reminded them of their oath to uphold the U.S. Constitution when they entered office, later adding that Roe v. Wade — the landmark U.S. Supreme Court case affirming a woman’s right to have an abortion under the 14th Amendment — “is the law of the land.”
“It’s not going anywhere,” King said.
But the committee moved ahead anyway, voting 8-3 to send HB205 to the full House. The vote came after several dozen emotional Utahns testified for and against the bill, lining the walls of the committee room and overflowing into another, where the meeting was broadcast.
The legislation had caught widespread attention Monday, the first day of the session, when the bill’s sponsor, Rep. Karianne Lisonbee, R-Clearfield, held a news conference laying out the details. She reiterated her belief Thursday that aborting a fetus due to a Down syndrome diagnosis is “one of the worst types of discrimination” and that such procedures smack of eugenics.
The bill would make carrying out such an abortion a class A misdemeanor for the doctor.
Before the hearing, the Legislature’s general counsel added a note to the bill, which said, based on state and federal constitutional language and case law, “this legislation has a high probability of being declared unconstitutional by a court.” It cited Roe v. Wade and several other cases.
Marina Lowe, legislative and policy counsel with the American Civil Liberties Union of Utah, agreed with that assessment, telling legislators that several conservative states that recently passed similar legislation faced swift legal challenges — including one from a federal judge who blocked Indiana’s version.
She was not aware of a court that had upheld similar bans, she said, adding that, in general, the legislation would improperly insert the government into a place were women and families are trying to make difficult decisions.
William Duncan, a director at the conservative Sutherland Institute think tank, said this abortion ban has not been heard by the Supreme Court before, so there’s a “lack of data” on what the court might do. He disagreed with the state’s legal assessment, but he added that it’s the right thing to pass even if it did face significant legal hurdles.
“This kind of an abortion is an instance of eugenics, which we have repudiated as a people, including by the Supreme Court many decades ago,” Duncan said.
A number of people spoke in favor of the bill, including a few people who have Down syndrome and parents of children who have the chromosomal disorder, which causes intellectual disabilities and other physical problems in development after birth.
A 48-year-old woman with Down syndrome sang her testimony to the lawmakers: “It’s true I don’t walk or talk just like you / It could be I’m slow but one thing I know / I want to be good at things just like you / I have feelings, too.”
One advocate said the bill would not help disabled people lead better lives and would discriminate against women like her, people who have been forced to make difficult reproductive decisions. “This is a hurtful bill, and it only brings more discrimination” to pregnant women, she said.
The bill also would require physicians to conduct in-person consultations with pregnant women who have had positive tests, to provide information about Down syndrome advocacy groups and to refer them to specialists on the disorder.
Several medical professionals and a Utah Medical Association representative said the provisions are problematic because they would add unnecessary requirements for doctors who already have patients’ best interests in mind.
The Planned Parenthood Association of Utah said the bill is about lawmakers wanting to restrict abortion access — not protecting people with Down syndrome.
King repeated another argument against HB205 several times Thursday: “It’s patently unconstitutional.”