A court of appeals said an Ohio law banning abortions in Down syndrome cases can continue, reversing the decision of a lower court.
The U.S. Court of Appeals for the Sixth Circuit said a group of clinics who provide abortions across the state “failed to demonstrate a likelihood of success” in challenging the constitutionality of House Bill 214, which banned abortions when a fetus has been diagnosed with Down syndrome.
The court also ruled against a preliminary injunction for the law, which would have kept the state from implementing or enforcing the law.
The 111-page decision, which split the court 9 to 7, included four separate opinions concurring with the opinion of the court, and six separate dissenting opinions.
The district court that ruled on the case previously said the rights established by Roe v. Wade, which made abortion the law of the land in 1973, is “absolute,” and allowed the injunction, leading to the appeal to the Sixth Circuit.
In its appeal, the state argued against the argument that Roe v. Wade applied universally to all abortions, and that H.B. 214 “imposes no substantial obstacle on a woman’s right to an abortion.”
The appeals court’s interpretation of the law was that it “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,” based on a test result, prenatal diagnosis or “any other reason to believe that an unborn child has Down syndrome.”
The law makes it a fourth-degree felony for a doctor to conduct an abortion when he knows a Down syndrome diagnosis has been made and threatens revocation of a physician’s license and civil liability for doctors.
“In our view, the effect of H.B. 214 on this woman is to deny her the doctor of her choosing when, and only when, that doctor of her choosing is a doctor who knows that her reason for the abortion is because she does not want a child with Down syndrome,” the court wrote in its lead opinion.
The court took issue with methods Planned Parenthood and the group of clinics and physicians who sued the state regarding the law use to define knowledge of Down syndrome.
The clinics argued that those seeking “Down-syndrome-selective abortions” typically reach out to abortion clinics after testing and counseling with a “high-risk obstetrician-gynecologist” or similar specialist.
They argued that the doctor who performs the abortion “may or may not learn of the fetal-Down syndrome diagnosis,” but the court said knowledge of the diagnosis does not equal knowledge that a patient is having an abortion specifically because the fetus has Down syndrome.
“None of the clinics or doctors requires women to give their reason for having the abortion,” the court wrote in its opinion. “Certainly not every woman offers one.”
The court agreed with the state that “the right to an abortion, even before viability, is not absolute.”
“Simply put, there is no absolute or per se right to an abortion based on the stage of the pregnancy,” the court wrote.
Judges on the appeals court went on to rule that the issue at hand was not actually about the right to obtain an abortion, but more specific to the medical diagnosis of Down syndrome.
“If the law said that a woman may not obtain an abortion because the forthcoming child would have Down syndrome, then this would be a different case,” according to the court decision. “Going one step further, if the law said that a doctor may not perform an abortion because the forthcoming child would have Down syndrome, that, too, would be a different case. But H.B. 214 does not say either thing.”
In one of the dissents of the court’s decision, Chief Judge R. Guy Cole, Jr., unequivocally stated that the law was “undoubtedly an abortion restriction,” despite the majority court’s opinion about the true issue of the lawsuit.
Cole said the ruling “recasts” H.B. 214 as an “anti-discrimination law” that acts as a deterrent for women who may lie to doctors about their motivations for an abortion.
“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.”
Chrisse France, executive director of one of the clinics in the lawsuit, Preterm Cleveland, called the ruling an “affront on the important, trusting relationship between healthcare providers and the individuals and families we serve.”
“At Preterm, we trust our patients and value their lives and decisions in all their complexity,” France said in a statement. “No one should be able to make these decisions other than the patients and families we serve.”
Anti-abortion lobby group Ohio Right to Life praised the decision in a statement, and said it “brings us one step closer to ensuring that vulnerable babies with special needs are not marked for death because of who they are.”
This story was originally published by the Ohio Capital Journal and republished here with permission.
