In a divisive ruling featuring six dissents, an en banc Sixth Circuit on Tuesday reversed a district court decision that blocked enforcement of an Ohio law that criminalizes abortion procedures when the physician knows that the patient’s intent to terminate a pregnancy is because the fetus was diagnosed with Down syndrome, allowing the law to stand.
The group of medical provider plaintiffs — Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Women’s Med Group Professional Corporation, and Roslyn Kade, M.D. — challenged the constitutionality of Ohio’s H.B. 214, “which prohibits a doctor from performing an abortion with the knowledge that the woman’s reason for aborting her pregnancy is that her fetus has Down syndrome and she does not want a child with Down syndrome,” the court explained.
The Southern District of Ohio sided with the plaintiffs, invoking Roe v. Wade’s precedent that “the right to an abortion before viability is absolute,” the court recounted. The district’s ruling effectively enjoined the state from enforcing the challenged law through a preliminary injunction. However, the Tuesday circuit court judgment vacated that injunction.
The Sixth Circuit majority reasoned that the law — which does not criminally implicate the patient seeking an abortion, just the physician performing the procedure — was erroneously deemed unconstitutional by the district court, noting that it leaves abortion procedures permissible when doctors “do not know that Down syndrome is the reason.” The majority took issue with the district court characterizing the plaintiffs’ claim of an “absolute” right to abortion pre-viability as likely to succeed on its merits, disputing that such an right even exists; Judge John K. Bush, concurring, agreed while taking it a step further in saying that “no fundamental right to eugenic abortion exists.”
“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,’ ” the court said, citing Women’s Med. Prof’l Corp. v. Taft, a 2003 Sixth Circuit decision.
Even so, the majority claimed, “viability is not germane to this analysis or decision,” and “the ‘right’ actually implicated or affected here is not the woman’s right merely to obtain an abortion” because the only restriction coded by the law is that a physician may not perform an abortion if they know that the patient’s reasoning behind wanting the procedure is to avoid having a child with Down syndrome, according to the court.
Although the majority opinion contended otherwise, the plaintiffs had argued that the law is facially unconstitutional because of the “undue burden” it places on patients in a “large fraction” of cases, including that the law “will prevent a full, open, and honest conversation with the doctor who will perform her abortion” and that it “may force a woman seeking an abortion to engage in “doctor shopping” to find a doctor who is unaware of her reason for seeking the abortion.” Chief Judge R. Guy Cole Jr., in dissent, agreed with the plaintiffs.
“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,” Cole wrote. “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.”
Judge Karen Nelson Moore also was among the dissenters, coming on the heels of her dissent in a separate decision by the circuit to grant an en banc hearing to the state of Tennessee defendants hoping for a more favorable judgment on their abortion waiting-period law after a district court ruled it unconstitutional, as Law Street Media reported.
In this dissent, Nelson Moore called the majority’s reasoning “self-devouring and logically untenable” and said the majority opinion and concurrences were revealing to “a view of precedent and history that … render any effort to secure the right to an abortion dead on arrival in this court.”
In a similar matter, the state of Arkansas is attempting to defend its own law prohibiting physicians from performing abortions because of a Down syndrome diagnosis through a petition to the Supreme Court filed Friday.
The state of Ohio defendants are represented by their own counsel. Case Western Reserve University, the American Civil Liberties Union, and ACLU of Ohio Foundation are representing Preterm-Cleveland; Planned Parenthood Federation of America and Friedman, Gilbert & Gerhardstein are representing both Planned Parenthood chapters; and Friedman also is representing physician plaintiff Kade and Women’s Medical Professional Corporation.
