Victory for Life: Full Sixth Circuit Upholds Ohio Law Restricting Abortions of Children With Down Syndrome

In a 9-7 vote, the entire Sixth Circuit Court of Appeals just upheld an Ohio law that protects unborn children from being aborted when the doctor is aware that the child is being terminated because he or she has Down syndrome. It’s undoubtedly one of the most significant pro-life victories in years.

As explained in more detail here, in December 2017 then-Governor John Kasich signed into law H.B. 214, (“Prohibit abortion if unborn has or may have Down Syndrome”), over cries by the ACLU of Ohio that it’s “blatantly unconstitutional.” The law doesn’t impose an outright ban on aborting children with Down syndrome; it prohibits a doctor from performing an abortion when the doctor knows that the mother’s reason for having the abortion is that her child has Down syndrome—a huge step forward in protecting the most vulnerable among us.

Planned Parenthood and others sued Ohio before the law went into effect. (Planned Parenthood can’t stomach a law that restricts abortion access in any way, even if the purpose of the law is to fight discrimination against those with Down syndrome.) After the trial court blocked the state from enforcing the law, Ohio took the case up on appeal, where the ACLJ filed an amicus brief in defense of this important pro-life measure. We argued that just as the government has the authority to protect individuals with Down syndrome against discrimination after they are born, it also has the authority to protect them before they are born. Disability-based discrimination is wrong whether the disabled person is an adult or child (born or unborn).

After a three-judge panel of the Sixth Circuit ruled against Ohio, Ohio took the case to the full court of appeals, which handed down its decision earlier this week.

In addition to reaffirming the legal truth, based squarely on Supreme Court precedent, that “the right to an abortion before viability is not absolute,” the Sixth Circuit decision upheld H.B. 214 on three key points:

First, the law furthers weighty and legitimate governmental interests:

• Protecting the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions;
  
  
• Protecting pregnant women from coercion by doctors who advocate for the abortion of Down-syndrome-afflicted children; and
  
  
• Protecting the integrity of the medical profession by preventing doctors from becoming knowing participants in Down-syndrome-selective abortions.

Second, and contrary to how Planned Parenthood interprets the law, H.B. 214 does not create a “categorical ban on a subset of pre-viability abortions.” As the court noted:

Even under the full force of H.B. 214, a woman in Ohio who does not want a child with Down syndrome may lawfully obtain an abortion. H.B. 214 does not prohibit her from choosing or obtaining an abortion for that, or any other, reason. To the extent that H.B. 214 amounts to a prohibition, it prohibits a doctor from aborting a pregnancy when that doctor knows the woman’s particular reason, and that the reason is that (a) she knows or has reason to know that the forthcoming child will have Down syndrome and (b), at least in part because of that, she does not want it.

In other words, the law only prohibits the doctor from performing an abortion if (1) the woman knows or reasonably believes her child has Down syndrome; and (2) she wants an abortion because of that belief; and (3) the doctor knows that’s her reason.

Despite the (false) cries of alarm from Planned Parenthood, ACLU, and others, the target of the law is not women seeking to abort a child with Down syndrome; it’s doctors who would knowingly participate in a eugenics-based abortion. (In fact, H.B. 214 explicitly provides that the woman making this choice cannot be found guilty of violating the law.)

Third, H.B. 214 does “not create a substantial obstacle to a woman’s ability to choose or obtain an abortion.” A woman wanting to abort her Down syndrome child can simply avoid telling the abortionist the reason for the abortion. As the court noted:

Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing.

In addition to the lengthy and detailed opinion of the en banc court, several Sixth Circuit judges wrote separate thoughtful concurrences. One concurrence, written by Judge Griffin, pulled no punches:

Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today….

[H.B. 214] promotes Ohio’s compelling state interest of proscribing complicity by its physicians in the discriminatory and misguided practice of eugenics.

This week’s decision is significant in many respects. Not only does it uphold a law designed to combat the evil of eugenics and disability-based discrimination, it creates an important precedent for those other states within the jurisdiction of the Sixth Circuit: Kentucky, Michigan, and Tennessee. It can also serve as persuasive legal authority for states beyond the Sixth Circuit to follow.

And that is not all. Just two years ago, the Supreme Court declined to decide the constitutionality of an Indiana law restricting the ability of doctors to participate in sex-, race-, and disability-selective abortions. In addressing why it chose not to decide the issue, the per curiam opinion noted, “Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.” (The ACLJ filed an amicus brief with the Court defending the law.)

With this week’s decision from the Sixth Circuit, not only do we now have an additional court of appeals weighing in on the issue of eugenic abortions, we have a clear circuit split between two courts of appeals—often a compelling reason for the Supreme Court to take up a case. Will Planned Parenthood ask the Supreme Court to review the Sixth Circuit decision? That remains to be seen. If it chooses to do so—the only legal avenue left for Planned Parenthood in this case—it might not like the answer it gets.

And if Planned Parenthood does challenge it at the Supreme Court, the ACLJ will be ready to file a new amicus brief defending this important pro-life law.