Sixth Circuit Court of Appeals Upholds Ohio’s Down Syndrome Abortion Law

The United States Sixth Circuit Court of Appeals upheld an Ohio State pro-life law by a 9-7 majority, forbidding abortion if the procedure is sought solely because the child has Down syndrome.

The Sixth Circuit reversed a district court’s decision that granted a preliminary injunction requested by abortion providers, such as Planned Parenthood that maintained a woman’s right to intentionally abort her pregnancy is absolute prior to viability, established by Roe v. Wade.

The 9-7 majority ruling on Ohio’s H.B. 214 law was made with nine Republican appointees. Every Trump appointee on this case voted with the majority to uphold the statute. Of the seven dissenters, five are Democrat appointees, and two are moderate Republican appointees.

“In plain terms, H.B. 214 prohibits a doctor from performing an abortion if that doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome,” wrote Judge Alice Batchelder, who was appointed by former President George H.W. Bush and highly regarded by conservatives. Batchelder said:

By prohibiting doctors from knowingly and deliberately eliminating fetuses because of their Down syndrome, the State intended to send an unambiguous moral message to the citizens of Ohio that Down syndrome children, whether born or unborn, are equal in dignity and value to the rest of us.

But the lower court held H.B. 214 is an impermissible infringement on women’s “unfettered right to choose whether to terminate, or continue, a pregnancy pre-viability,” and therefore enjoined the defendants from implementing or enforcing H.B. 214.

“The right to an abortion before viability is not absolute. The State may regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate her pregnancy,” Batchelder responded to the lower court.

Indeed, the State asserts that H.B. 214 protects the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.

Note that Batchelder even quotes Roe v. Wade, saying it rejected the position “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”

And the United States Supreme Court in Casey added that such an absolute rule was “incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.”

Batchelder also writes the concept of whether an unborn child is viable is irrelevant to the Down syndrome community, the family medical profession, and the integrity of the medical profession’s interests, because “The strength of these interests is the same throughout pregnancy, from the first day to the last.”

She explains the current version of the Supreme Court “undue burden test” holds that if a law creates a “substantial obstacle” to a woman’s ability to obtain an abortion, then it poses an undue burden on her protected right, is invalid, and must be struck down.

Because the statute merely prevents a doctor from performing the abortion if the doctor knows the baby has Downs and that the mother wants an abortion for that specific reason, Batchelder reasons:

The possibility that a woman, when speaking with the doctor who would perform her abortion, might decide to change her reason (or lie about her reason) on sober second thought is not a separate burden on a woman’s ability to choose or obtain an abortion.

Batchelder concludes:

We hold that the restrictions imposed, or burdens created, by H.B. 214 do not create a substantial obstacle to a woman’s ability to choose or obtain an abortion. Moreover, those restrictions are reasonably related to, and further, Ohio’s legitimate interests. Therefore, H.B. 214 is valid in all conceivable cases and the plaintiffs cannot succeed on the merits of their claim.

The cases are Preterm-Cleveland v. McCloud, No. 18-3329 in the U.S. Court of Appeals for the Sixth Circuit