By / Apr 16

A slim majority of judges on the Sixth Circuit Court of Appeals reinstated an Ohio law that punishes doctors who perform abortions because the unborn child has a diagnosis of Down syndrome

In 2018, a federal judge granted a preliminary injunction to Planned Parenthood and Preterm-Cleveland to prevent the law from taking effect. Ohio appealed the decision to the Sixth Circuit, and the case was initially argued in front of a three-judge panel that upheld the injunction in October 2020. But in a 9 to 7 vote on Tuesday, the appeals court overturned two lower court decisions and ruled the law could be enforced.

What does the Ohio law prohibit?

In 2017, the Ohio legislature passed a bill that prohibits a person from performing, inducing, or attempting to perform or induce an abortion on a pregnant woman who is seeking the abortion because an unborn child has or may have Down syndrome.

The legislation makes such an abortion a fourth degree felony, and the state medical board will revoke a physician’s license to practice medicine in this state if the doctor performs the abortion knowing it was because of a possible diagnosis of Down syndrome. 

The doctor must also obtain a written acknowledgment that the pregnant woman is not seeking the abortion, in whole or in part, because of a test result, prenatal diagnosis, or any other reason to believe that an unborn child has Down syndrome. Lawyers for the state defending the law in court said that if a woman does not tell her doctor a diagnosis of Down syndrome is part of her reasoning, the doctor would not be in violation of the law. A pregnant woman on whom an abortion is performed or induced is also not guilty of violating the law. 

The bill was signed into law by former Gov. John Kasich in February 2018.

What was the reasoning used in this ruling?

The federal judge that issued the injunction in 2018 did so on the basis that any prohibitions on abortion before fetal viability (i.e., before the unborn child can live outside the womb) are unconstitutional under Roe v. Wade. The state of Ohio appealed the injunction, arguing that the law passed the “undue burden test” because it imposes no substantial obstacle on a woman’s right to an abortion and furthers three legitimate interests of the state. 

The three interests claimed by the state are (1) the law protects the Down syndrome community—both born and unborn—from discriminatory abortions, namely Down-syndrome-selective abortions; (2) the law defends families from coercive healthcare

practices that encourage Down-syndrome-selective abortions; and (3) the law protects the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. 

Each of these three interests, argued the state, are connected to the doctor’s knowing participation in a woman’s decision to abort her pregnancy because she does not want a child with Down syndrome. 

The appeals court rejected the claims of Planned Parenthood by stating, “The right to an abortion before viability is not absolute” [Emphasis in original]. The court added, “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.” 

What happens next?

Planned Parenthood has not yet said whether they plan to appeal the decision to the U.S. Supreme Court. If they do, the Supreme Court may decide to hear the case since the justices frequently agree to “hear cases in order to resolve circuit splits by creating a unified interpretation of the law which is then binding on all lower courts.” In 2016 a federal judge blocked a similar law in Indiana that bans abortions sought because of an unborn child’s genetic abnormalities.

Even if this case is heard by the Supreme Court, though, other abortion-related cases making their way through the courts are likely to provide a more direct challenge the constitutionality of Roe v. Wade.