A divided Sixth Circuit Court of Appeals on Tuesday gave the green light for an Ohio law that seeks to protect unborn children with Down syndrome from being subjected to selective abortions.
The full court of the 6th Circuit ruled in a 9-7 en banc decision (pdf) to reverse a lower court ruling that blocked H.B. 214, known as the “Down Syndrome Non-Discrimination Act,” from being enforced. The 2017 law prohibits a doctor from performing an abortion if he or she has knowledge that the mother’s reason for aborting the pregnancy is due to a prenatal Down syndrome diagnosis. Doctors who violate the law could be punished criminally and result in the revocation of their medical license.
The majority argued that the plaintiffs—four medical service providers and a doctor—had failed to demonstrate a likelihood that their claim would succeed. The plaintiffs had argued that the law was unconstitutional and burdens the right to an unencumbered abortion. The American Civil Liberties Union represented the plaintiffs in this case.
But the majority panel did not agree. It said that the law does not impose an “undue burden” on women from seeking an abortion and that any obstacles the law imposes on mothers seeking abortion are “incidental and acceptable.” The judges said that if a doctor disqualifies him- or herself from performing an abortion to comply with H.B. 214, the mother could still secure another doctor, with no knowledge of her reason for the abortion, to perform the abortion.
“Certainly, even with a referral, this could take some time, it would likely cost some additional money, and it might force her to travel farther than she would have had to otherwise. But, without something more, the Court has already determined that these types of burdens do not rise to the level of an objectively substantial obstacle,” the panel wrote.
The issue in this case, the panel argued, is not about the woman’s right or ability to obtain an abortion, but rather that the law regulates whether doctors can perform an abortion if he or she knows the mother’s intention for the abortion. The law itself does not penalize a mother who seeks an abortion because of her fear that her child could be born with Down syndrome.
“It prohibits a doctor from aborting a pregnancy if the doctor knows that the woman’s purpose is to preclude the birth of a child who will have Down syndrome, but it permits that same abortion if the doctor does not know. Thus, from the plaintiffs’ perspective, it regulates (via the doctor) the reason behind the woman’s decision,” the opinion stated.
The majority also found that the district court was also mistaken when it issued the preliminary injunction to block the law on the ground that the law “eradicated the woman’s right to an abortion,” the panel wrote. The judges said the right to an abortion, even before viability, was not absolute and that states could still regulate such abortions as long as it does not impose an “undue burden” on the woman’s ability to terminate her pregnancy.
“Simply put, there is no absolute or per se right to an abortion based on the stage of the pregnancy. The district court erred by so holding, and the plaintiffs cannot succeed on that proposition standing alone or show any likelihood that they could do so,” they said.
In the dissent, Chief Justice Ransey Guy Cole said he believes “H.B. 214 is undoubtedly an abortion restriction” and argued that the majority’s ruling is an “attempt to sidestep one constitutional problem” but would “only [land] it in another.”
“Ohio may believe that requesting an abortion due to a fetal diagnosis of Down syndrome is offensive and discriminatory. But the state may not ban speech for being offensive or even discriminatory,” Coles said, explaining that the law only restricts the information and opinions a mother may share with her doctor.
“In its haste to reconcile the law with a woman’s right to an abortion, the majority turns H.B. 214 into a don’t ask, don’t tell law. So long as doctors don’t ask and women don’t tell, the majority reassures us that women remain free to exercise their constitutional rights,” he wrote.
Meanwhile, Circuit Judge Bernice Bouie Donald delivered a scathing dissent to the majority opinion, describing the law as “the long-arm of the state—wielding the threat of a class-four felony—forcefully reaching into a profoundly intimate conversation between doctor and patient and telling the patient to be silent about her medical history or worse, purposefully lie about it.”
Ohio had introduced the law in an effort to protect members of the Down syndrome community—both born and unborn—from discriminatory abortions, to defend families from coercive healthcare practices that encourage Down-syndrome-selective abortions, and prevent doctors from becoming witting participants in such abortions, the court said.
Jessie Hill, cooperating attorney for the ACLU of Ohio, said in a statement that they were “disappointed” by the decision.
“Patients should have all the information desired about their pregnancy, 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 within the doctor-patient relationship,” Hill said.
Meanwhile, the president of the pro-life group Susan B. Anthony List praised the ruling, saying that the court upholds Ohio as a safe haven for unborn babies with Down syndrome.
“This law includes reasonable, compassionate measures to prevent lethal discrimination in the womb. We also recognize and celebrate that this legislation has the potential to pose a significant challenge to Roe v. Wade. Now that a circuit split has occurred on the issue of whether states may prohibit the eugenic practice of discrimination abortion, the Supreme Court has even more reason to weigh in on this important matter and declare these laws as constitutional. We encourage the high court to act now that this issue has received further consideration in the lower courts. Discriminatory abortions based on sex, race and disability are no less than modern-day eugenics, and must swiftly come to an end,” President Marjorie Dannenfelser said.
This comes after a three-judge panel on the 8th Circuit Court of Appeals in January ruled to uphold a block on a similar law in Arkansas. Arkansas’s Republican Attorney General Leslie Rutledge on Tuesday asked the U.S. Supreme Court to review the January ruling.
The case is Preterm-Cleveland et a v McCloud et al, No. 18-3329.