Divided Sixth Circuit Lets Ohio Ban Abortions Based on Down Syndrome Diagnosis

An en banc appeals court divided on party lines ruled Ohio’s ban on abortions in cases where a Down syndrome diagnosis has been made does not impose a substantial burden on women seeking the procedure.

Chrisse France, executive director of Preterm-Cleveland, the busiest abortion clinic in Ohio, is seen in the clinic’s procedure room in February 2020. (AP Photo/Tony Dejak, File)

CINCINNATI (CN) — A majority of the Sixth Circuit pushed back Tuesday on the notion that a woman’s right to an abortion before viability is absolute, reinstating an Ohio law that punishes doctors who perform abortions after a patient includes a Down syndrome diagnosis in her decision-making process.

The en banc court ruled that House Bill 214, signed into law by former Governor John Kasich in February 2018, furthers the state’s interest in affirming that individuals with the genetic disorder “are equal in dignity and value” to all others, and does not impose a ban on women seeking abortions.

Tuesday’s ruling lifts an injunction issued by a federal judge in March 2018 after Planned Parenthood and Preterm-Cleveland sued to challenge the law. The 111-page decision included concurring or dissenting opinions from nearly every judge that heard arguments in March 2020, while Senior U.S. Circuit Judge Alice Batchelder wrote the lead opinion.

Batchelder, a George H.W. Bush appointee , cited the 1992 U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, and rejected the idea that any restrictions on pre-viability abortions infringe on a woman’s right to the procedure established by Roe v. Wade in 1973.

“The lead opinion [in Casey],” she said, “corrected the mistaken view of Roe that saw any or all pre-viability ‘attempts to influence a woman’s decision … as unwarranted,’ saying that such an absolute rule was ‘incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.'”

Batchelder called the abortion providers’ focus on fetal viability “misplaced,” and instead analyzed the behavior that is actually legislated by H.B. 214 in the case of a woman who wants an abortion and tells her health care provider it is because the fetus has Down syndrome.

“In our view, the effect of H.B. 214 on this woman is to deny her the doctor of her choosing when, and only when, that doctor of her choosing is a doctor who knows that her reason for the abortion is because she does not want a child with Down syndrome,” the ruling states. “As limitations or prohibitions go, this is specific and narrow.”

Batchelder and the judges who concurred with her opinion rejected the providers’ argument that H.B. 214 represents a “categorical ban” on certain pre-viability abortions, and instead determined the law does not impose an undue burden on Ohioans seeking abortions.

“Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing,” the majority opinion states. (Parentheses in original.)

Batchelder also emphasized the legitimacy of the interests advanced by the state through the passage of H.B. 214, including the inherent value of individuals with Down syndrome and the prevention of coercion by doctors who “believe that Down syndrome can and should be eradicated through a systemic abortion program.”

She was joined in her opinion by U.S. Circuit Judges Jeffrey Sutton, Richard Griffin, Raymond Kethledge, Amul Thapar, John Bush, Joan Larsen, John Nalbandian and Chad Readler.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, wrote one of several dissenting opinions, in which she called the majority’s position “self-devouring and logically untenable.”

“At least some of the six judges who joined the lead opinion in full seemingly would never concede that an abortion ban or regulation should be found unconstitutional under any fathomable test — here or in any other abortion case,” Moore wrote. “The language of the majority and some of the concurrences betrays the elephant in the courtroom: some members of the judiciary do not believe that the right to abortion should exist.”

U.S. Circuit Judge Eric Clay, also a Clinton appointee, echoed his colleague’s sentiments in another scathing dissent.

“Hiding in the shadows of this case is the fact that a majority of this court believes that there is no constitutional right to abortion access,” he said. “No matter how strongly members of this court feel that the Supreme Court’s precedent on reproductive freedom is wrong, as lower court judges, we have no authority to contradict binding Supreme Court precedent.”

Another dissenting opinion took aim at Ohio’s purported interests in passing the restriction. U.S. Circuit Judge Bernice Donald, a Barack Obama appointee, questioned the state’s failure to include fetuses with other developmental illnesses in the bill and used its own words against it to question its motives.

“Not only does Ohio [in its brief] refer to Down syndrome as ‘a problem,’ it also remarkably claims that the state will devote fewer resources to do anything about that ‘problem’ if the number of persons with Down syndrome decreased,” Donald wrote.

She continued, “This assertion alone sends the very message to the Down syndrome community that Ohio purports to avoid through H.B. 214: you are valued only to the extend you are numerous. We will provide resources, support, and attention only if there are enough of you to merit addressing the ‘problem’ of Down syndrome; Ohio’s own words — in its briefing before this court — belie the very message it purports to send through H.B. 214.”

Chief U.S. Circuit Judge R. Guy Cole Jr., as well as U.S. Circuit Judges Helene White, Jane Stranch, and Julia Gibbons also joined in dissenting from the majority.

Attorney Jessie Hill, who argued the case on behalf of Preterm-Cleveland, said in a statement she was “deeply disappointed” by the court’s decision.

“Patients should have all the information desired about their pregnancy,” she said, “and be encouraged to ask questions confidentially in order to make the very personal decision to have an abortion freely, without the presence of politicians in the exam room. It’s unfortunate that the court gave so little weight to the importance of open and honest communication with the doctor-patient relationship.”

Preterm’s executive director, Chrisse France, also railed against the decision in a statement.

“Today, the Sixth Circuit allowed politicians to exploit the real needs and concerns of people with Down syndrome to push their anti-abortion agenda,” she said. “At Preterm, we trust our patients and value their lives and decisions in all their complexity; no one should be able to make these decisions other than the patients and families we serve.”

Neither Planned Parenthood nor the Ohio Department of Health immediately responded to requests for comment.

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