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Ohio Law Punishing Doctors for Performing Abortions With a Down Syndrome Diagnosis Upheld

WASHINGTON, DC - JANUARY 19:  Pro-life activists try to block the signs of pro-choice activists in front of the the U.S. Supreme Court during the 2018 March for Life January 19, 2018 in Washington, DC. Activists gathered in the nation's capital for the annual event to mark the anniversary of the Supreme Court Roe v. Wade ruling that legalized abortion in 1973.  (Photo by Alex Wong/Getty Images)
By Joseph Fawbush, Esq. | Last updated on

Legislation and litigation are increasingly testing the boundaries of Supreme Court precedent regarding abortions. In part, perhaps, because the analysis courts use to weigh the constitutionality of laws restricting abortion access are less clear than they have been in decades.

In 2020, Justice Roberts joined with liberal justices in holding that Louisiana's abortion law was unconstitutional in June Medical. However, Justice Roberts differed in his analysis from the plurality. Lower courts must therefore determine how much weight to give the plurality opinion in that case versus Justice Roberts' analysis. Justice Roberts' position is that lower courts should not examine an abortion regulation's benefits when determining whether the law poses a substantial obstacle to women seeking an abortion.

Now that Justice Barret is on the Supreme Court, it is even less clear how the Supreme Court will view restrictive abortion laws. State legislatures have taken the opportunity to press for more restrictions on abortion. Lower courts are muddling through a number of cases tackling these issues, the Sixth Circuit among them.

The Ohio Law

In 2018, Ohio lawmakers passed a law prohibiting abortions when physicians had reason to believe the pregnancy was being terminated because of a Down syndrome diagnosis. The law was immediately challenged as unconstitutional, and a lower court issued a preliminary injunction preventing the law from being enforced.

In 2019, a Sixth Circuit panel upheld the injunction in a 2-1 decision, holding that Supreme Court precedent prohibited states from banning any abortion pre-viability. The Sixth Circuit agreed to rehear the case en banc. The full court issued its opinion on April 13, reversing the panel's decision and saying the Ohio law passes constitutional muster.

The Sixth Circuit's Reasoning

Senior Judge Alice Batchelder wrote the opinion for the majority. Citing Planned Parenthood v. Caseyand writing that Justice Roberts' concurrence in June Medical is binding on the Sixth Circuit based on a previous case, Judge Batchelder wrote that there is no absolute rule in Roe v. Wade that any and all legislative attempts to influence a woman's decision pre-viability violates the Fourteenth Amendment.

Judge Batchelder wrote that the narrow, specific limitation of informing your doctor that you want an abortion because of a Down syndrome diagnosis does not pose an undue burden on Ohioans. The majority held that because a woman could simply go to the next doctor available and not inform them of the reason for seeking the termination of the pregnancy, it did not really function as an abortion restriction. Instead, the law functions as an anti-discrimination law in that women cannot tell their doctor about it.

The majority held that the state had a legitimate interest in this anti-discrimination effort. For one, it protects women and families from coercion from doctors. "Based on the limited record here, if we accept that there are some doctors willing to exert such pressure, then H.B. 214 certainly furthers this interest," Judge Batchelder wrote. The majority also said that the state had an interest in reducing the stigma associated with Down syndrome and protecting the ethics of the medical profession.

Several Dissents

Several justices filed dissenting opinions. Chief Judge Guy Cole argued that "H.B. 214 is undoubtedly an abortion restriction," and that even if the majority was correct in its attempt to frame the law as a speech restriction, it doesn't help "because laws that target discriminatory speech are also unconstitutional."

Judge Karen Nelson Moore wrote separately to note that the majority's reliance on the Chief Justice's concurrence in June Medical is unsupported and "the lead opinion's and the concurrences' reasoning is self-devouring and logically untenable." In essence, Judge Moore argues that either "the June Medical concurrence is not binding under its own definition of dicta" or "must admit that H.B. 214 would be unconstitutional under the June Medical plurality."

Judge Clay dissented separately to note that in effect, the Sixth Circuit was overruling Supreme Court precedent in Whole Women's Health, which has never been overturned. Judge Julia Smith Gibbons, meanwhile, called out a concurrence by Judge Griffin, who wrote "to emphasize Ohio's compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics."

As it stands, it appears that the Sixth Circuit has explicitly adopted Justice Roberts' concurring opinion in June Medical as binding precedent. Meanwhile, doctors in Ohio risk running afoul of Ohio's law if they ask or hear about a Down syndrome diagnosis prior to performing an abortion, at least pending further developments in the case.

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