(CN) – A Sixth Circuit panel on Friday upheld an injunction that says a women's right to an abortion cannot be blocked in Ohio based on indications that a fetus has Down syndrome.
In 2017, the state of Ohio approved House Bill 214, which made it a felony to perform an abortion if the medical provider had knowledge to believe the unborn child would have Down syndrome.
Planned Parenthood and Preterm-Cleveland, sexual health and abortion clinic providers, sued the state in February 2018 claiming the law “criminalizes performing an abortion” if the person has knowledge of fetal indication with Down syndrome.
A preliminary injunction was granted by U.S. District Court Judge Timothy Black a little more than a week before the law was set to take effect, stating it is facially unconstitutional as it violates a woman’s right to privacy. A similar law was struck down the previous year in Planned Parenthood of Indiana and Kentucky v. Indiana State Department of Health.
On Friday, in a 2-1 decision the Sixth Circuit upheld the district court’s injunction.
Writing for the majority opinion was U.S. Circuit Judge Bernice Donald, a Barack Obama appointee. Donald wrote the Ohio Department of Health tried to place HB214 outside the scope of the landmark U.S. Supreme Court decisions of Roe v. Wade and Planned Parenthood v Casey, which set legal precedent on abortion.
The law would have prevented some women from getting pre-viability abortions, flying in the face of previous landmark decisions on abortion like Roe and Casey.
Ohio’s health department argued the law was an attempt to prevent discrimination and argued that Roe and Casey only apply to the state’s interest in the woman’s health and potential life.
Donald wrote, “This argument lacks rigor and is deceptive in its construction. The Supreme Court has made clear that, before viability, the state’s purported reason for prohibiting a woman from obtaining an abortion is not dispositive.”
The Ohio Department of Health argued that a strict scrutiny analysis should be applied to determine whether the state’s interest in preventing discrimination against persons with Down syndrome outweighs a woman’s right to privacy.
Donald wrote, “Within the abortion context, the state’s purported interest in preventing discrimination in this case is inescapably intertwined with the state’s interest in potential life in Roe and Casey. Without the potential life, there would be no interest in preventing discrimination.”
In a dissenting opinion, U.S. Circuit Judge Alice Batchelder, appointed by George H.W. Bush, quoted Supreme Court Justice Clarence Thomas in explaining how a law in Indiana and HB 214 promoted a state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Batchelder wrote, “Ohio enacted the Antidiscrimination Law, H.B. 214, to counteract such eugenicist practices concerning the prenatal Down Syndrome population.”
Attorney Jessie Hill from the American Civil Liberties Union of Ohio who argued before the panel said in a statement the appellate court was correct to block the law because it undermines the relationship between doctors and patients.
“Meanwhile, the Ohio legislature continues to churn out abortion ban after abortion ban, one more extreme than the next. We hope today’s decision sends a clear message to anti-abortion politicians about our reproductive rights,” said Hill.
Chief U.S. Circuit Judge R. Guy Cole Jr., appointed by Bill Clinton, rounded out the panel.
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