Rule of Law

Trump DOJ Goes to Court to Protect Civil Rights of Unborn

Eric Dreiband testifies before a Senate Judiciary Committee hearing on Capitol Hill in Washington, Wednesday, Sept. 6, 2017, regarding Dreiband's nomination to be Assistant Attorney General, Civil Rights Division. (AP Photo/Manuel Balce Ceneta)

The Trump Department of Justice has filed pleadings in federal court arguing that the unborn have federal civil rights that must be protected. The Justice Department Civil Rights Division yesterday filed a brief arguing that Ohio’s law prohibiting abortions based on the presence of Down syndrome is constitutional.

The Ohio law prohibits abortion providers from performing abortions when the provider has knowledge that the unborn child is being targeted for an abortion because of Down syndrome.

Assistant Attorney General Eric Dreiband heads the Civil Rights Division that filed the brief. Dreiband said, “Ohio’s Antidiscrimination Law affirms that people with Down syndrome have lives worth living and protecting.”

The Justice Department brief specifically says that the unborn with disabilities are worthy of civil rights protections and of life. The brief argues that the unborn should not have life terminated because they have a disability.

The brief argues Ohio’s law that stops abortions that target Down syndrome “protects individuals with disabilities from prejudice and indifference and the medical profession from harm to its integrity and reputation.” Referring to the evils of eugenicists and other state-sponsored killing programs, the brief argues Ohio’s law “wards against the slippery slope to medical involvement in race- or sex-based abortions.”

Women, the brief argues, are also protected by the Ohio law. It is a fact that women who face difficult pregnancies are routinely badgered about how difficult raising a handicapped child will be and are encouraged to abort the pregnancy. That’s what has given rise to pro-life women’s clinics like Tepeyac, so women can escape coercive medical advice. The Ohio law, the brief argues, protects women from such advice targeting the disabled, “by separating them from potentially coercive abortion providers who may seek to pressure them into obtaining an abortion because of Down syndrome.”

“Many women whose unborn children are diagnosed with Down syndrome receive the message that those children would be better off never being born,” the Justice Department brief argues.

The lower federal court blocked the law, and a divided panel of the Sixth Circuit Court of Appeals upheld the injunction against it. The full Sixth Circuit voted to rehear the entire case.

This filing marks a significant moment. The Trump Justice Department has been more active in defending pro-life legal positions than any prior administration, perhaps since Ronald Reagan.

Dreiband’s brief rightfully conjures history.

Less than a century ago, abortion and sterilization were tools of racist eugenicists who sought to tamp down the black population. Abortions occurred because American elites wanted fewer poor blacks. Shortly after that dark era in American history, Europe also slid to the bottom of the slippery slope. Aktion T4 “was a program to eradicate the imperfect and undesirable. Children and adults with defects were euthanized by doctors in hospitals dedicated to the medical eradication of those with birth defects or other imperfections.”

Doctors today urge mothers to abort children with Down syndrome because of the cost and strife of raising children who have it. In the 1940s, A New People, the monthly magazine of the NSDAP Bureau for Race Politics” proclaimed:

60,000 Reichsmark is what this person suffering from a hereditary defect costs the People’s community during his lifetime. Fellow citizen, that is your money too.

Targeting the disabled for elimination was not confined to just Nazi Germany. The impulse to eliminate the disabled runs through recent history. Dreiband’s brief is not out on a limb to conjure the slippery slope.

The brief is signed by Drieband, United States Attorney Justin Herdman, and Thomas Chandler, the acting chief of the Appellate Section. That no other lawyer in the Appellate Section signed the brief is an indication that no other career lawyer in that section believes that the unborn possess federal civil rights in this context.  This illustrates the ongoing problem with a radicalized career bureaucracy inside the Department of Justice. While a hiring freeze has been in place to prevent the expansion of the career ranks, few of the most radical career holdovers from the Obama era have departed.