Full Sixth Circuit Takes Up Ohio Ban on Selective Abortions

CINCINNATI (CN) – The en banc Sixth Circuit heard arguments Wednesday over Ohio’s ban on abortions involving fetuses with Down syndrome, with abortion providers again fighting to prevent the law from taking effect.

A federal judge granted a preliminary injunction to Planned Parenthood and Preterm-Cleveland in March 2018, just over a month after then-Governor John Kasich signed House Bill 214 into law.

(AP Photo/Rick Bowmer)

The bill “criminalizes performing an abortion if the person performing the abortion knows that one reason, in whole or part, for the woman’s decision to terminate her pregnancy is a fetal indication of Down syndrome.”

Ohio appealed the decision to the Sixth Circuit, and the case was initially argued in in front of a three-judge panel that upheld the injunction last October.

The state requested and was granted another set of arguments in front of the entire Cincinnati-based appeals court, at which point numerous state governments, as well as medical and civil rights organizations, filed amicus briefs with the court.

Attorney Ben Flowers argued on behalf of Ohio and told the court Wednesday the law was passed to prohibit “Down syndrome selective abortions” and prevent abortion providers from straying into practices that some might consider eugenics.

Flowers said the law sends a message that these abortions “are so heinous and so inhumane that doctors can go to jail and lose their licenses.”

The state’s attorney repeatedly told the judges his opponents failed to provide any evidence the law will place an undue burden on women seeking abortions, and said its practical effect is unknown because it has yet to be implemented.

U.S. Circuit Judge Karen Moore, an appointee of Bill Clinton, asked about the bill’s “subjective knowledge” requirement, and asked if it was a “run-around” to allow doctors to perform the abortions so long as the woman does not talk about the reasoning behind her decision.

Flowers answered that if a woman does not tell her doctor a diagnosis of Down syndrome is part of her reasoning, the doctor would not be in violation of the law.

Attorney Jessie Hill argued on behalf of Preterm-Cleveland and was grilled by several judges throughout her remarks about whether the law places an undue burden on women or simply regulates the doctors who perform the abortions.

Hill cited the 1992 Supreme Court decision in Planned Parenthood v. Casey, and said it held that states are unable to pass any law that restricts the availability of a pre-viability abortion.

The attorney called Ohio’s law “an absolute ban.”

“It doesn’t regulate the woman at all directly,” U.S. Circuit Judge Raymond Kethledge said, adding later that, “It’s not a ban.”

Kethledge, an appointee of George W. Bush, joined several of his colleagues in voicing their opinion that the law regulates only doctors, and not the women seeking abortions.

U.S. Circuit Judge Jeffrey Sutton, another George W. Bush appointee, sided with Kethledge, and noted it was “not a terrible idea” to pass legislation that limits a doctor’s ability to perform selective abortions, whether they are based on a medical diagnosis, race, or any other consideration.

Hill criticized the judges for their assumptions about the reasons women choose to have abortions, and said “to paint [these women] with the broad brush of eugenics is wrong.”

Kethledge conceded the use of the term was not applicable to all women affected by the law, but added that the restriction “strikes a balance between two extremes.”

Arguments were extended to 25 minutes per side to allow for an appearance by Justice Department attorney Alexander Maugeri, who argued on behalf of the federal government, an amicus party that supports Ohio’s position.

Maugeri said the government believes the Ohio law expresses the view that Down syndrome lives have value, and allows the state to prevent women from being pressured into abortions by portions of the medical community.

While several members of the court seem poised to overturn the lower court’s injunction, the majority of the 14 judges remained silent throughout proceedings.

Hill spoke to reporters after the hearing and stressed that women who make the decision to obtain an abortion do so after serious thought.

“Women are moral decision-makers,” the attorney remarked, after saying the issues involved are complex.

Ohio’s attorney, Flowers, could not be reached for comment.

No timetable has been set for the court’s decision.

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