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Federal judges on Wednesday sharply questioned attorneys on both sides of an Ohio law that faces doctors with a felony charge if they perform abortions aimed at preventing the birth of a baby with Down syndrome.

Jessie Hill, an attorney for the ACLU of Ohio, argued that the law seeks unconstitutionally to take “the ultimate decision” on abortion away from the woman. Benjamin Flowers, Ohio’s solicitor general, said it seeks to prevent abortions that target and discriminate against those with Down syndrome, which would send them a message that people including some medical providers “do not think people like you are as valuable as others.”

The case is viewed as pivotal in the national debate over the procedure. The 6th U.S. Circuit Court of Appeals heard the arguments in a rare full-court hearing before 15 judges on a court that has moved rightward in recent years with Republican President Donald Trump making six appointments.

Attorneys for the government contend in legal filings that the sidelined 2017 law does not infringe on a woman’s constitutional rights — because it “does not prohibit any abortions at all.”

Judge Raymond Kethledge, an appointee of Republican President George W. Bush, indicated agreement with the government in his questions, suggesting that the Ohio law “strikes a balance between two extremes.” Other judges questioned whether it stands up under existing law on abortion and whether it encourages women to mislead their doctors.

The Ohio law prohibits physicians from performing an abortion if they’re aware that a diagnosis of Down syndrome, or the possibility, is influencing the decision. They could face a fourth-degree felony charge, be stripped of their medical license, and be held liable for legal damages. The pregnant woman faces no criminal liability under the law.


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