The United States Court of Appeals for the Sixth Circuit this week upheld an Ohio law that bans doctors from performing abortions when they know the reason a woman is seeking an abortion is that her baby has Down syndrome. It is a major win for pro-life advocates but could face an appeal to the Supreme Court.
The new law, H.B. 214, provides in pertinent part:
No person shall purposely perform or induce or attempt to perform or induce an abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of any of the following:
(1) A test result indicating Down syndrome in an unborn child;
(2) A prenatal diagnosis of Down syndrome in an unborn child;
(3) Any other reason to believe that an unborn child has Down syndrome.O.R.C. § 2919.10(B).
Those violating the law are subject to a charge of a fourth-degree felony with the possibility of up to 18 months in prison.
What is odd about the law is that it turns on actual knowledge (“the person has knowledge that the pregnant woman is seeking the abortion” due to an unborn child with Down Syndrome). Doctors who avoid such knowledge could not be charged. It also means that one woman has a constitutionally protected right to abortion if she does not state her motivation while another can be barred from an abortion if she is honest about her motivation.
Judge Alice Batchelder wrote for the 9-7 majority in writing that the law does not violate a woman’s right to abortion because “There is no absolute or per se right to an abortion based on the stage of the pregnancy.” The majority notes:
“In this case, Ohio does not rely on its interest in protecting potential fetal life as support for H.B. 214, at least not expressly. Instead, Ohio relies on its interests in: (1) protecting the Down syndrome community from the stigma it suffers from the practice of Down-syndrome-selective abortions; (2) protecting women whose fetuses have Down syndrome from coercion by doctors who espouse and advocate the abortion of all such fetuses; and (3) protecting the integrity and ethics of the medical profession by preventing doctors from enabling such targeted abortions. Neither the intent, effect, validity, nor importance of any of these interests turns on the viability of the fetus. The majority declared that “As limitations or prohibitions go, this is specific and narrow,” she continued, and therefore it does not present a “substantial obstacle” to a woman’s ability to get an abortion.”
The majority concludes that “[a]s limitations or prohibitions go, this is specific and narrow,” and is not a “substantial obstacle” to a woman’s ability to get an abortion.
In his concurrence, Judge Richard Allen Griffin was even more blunt and referred to the practice as akin to eugenics: “Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.”
In dissent, Judge Bernice Donald declared that “Before viability, the State’s interests are not strong enough to support a prohibition on abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”
This case could present a challenge for some members of the Supreme Court like Chief Justice John Roberts. If it is upheld, it could allow for similar limitations based on the motivation of a woman in seeking an abortion in other cases of disabilities. The assumption has been that the right to an abortion was likely to be curtailed gradually by the Court rather than raise an outright overturning of the Roe cases. This would be a major win in that strategy in creating a myriad of exceptions that could ultimately swallow the rule in Roe.
Here is the case.