Ohio US Appeal Court Decision Relating to Down Syndrome Children in the Womb Boils Down to "Don't Ask, Don't Tell"
by Amy Asseff, Esq. April 29th, 2021
The District Court for the Southern District of Ohio granted a preliminary injunction of H.B 214, codified as R.C. 2919.10, which prohibits any person from performing or inducing an abortion if that person has knowledge that (i) the fetus has been diagnosed with Down Syndrome or is believed to have Down Syndrome or that (ii) the mother is seeking the abortion because of a fetal Down Syndrome diagnosis. Preterm-Cleveland, the plaintiffs-appellees, sought the injunction in a pre-enactment challenge to the law on the claim that H.B. 214 was facially unconstitutional and per se invalid as a prohibition on a woman's absolute right to obtain an abortion prior to viability of the fetus. The Sixth Circuit Court disagreed, reversed the lower's court's decision, and lifted the injunction.
The Circuit Court examined the law and determined that it furthered three legitimate state interests: (i) protecting the Down Syndrome community against discriminatory abortions, (ii) protecting pregnant mothers whose unborn children have been diagnosed with Down Syndrome from being unduly influenced or pressured by their doctors into aborting the unborn child, and (iii) protecting medical professionals' ethical standards by "preventing doctors from becoming willing participants in Down Syndrome selective abortions." The Circuit Court also found that the law did not impose an undue burden on a woman's ability to obtain an abortion but only prevented a woman from obtaining an abortion from the doctor of her choice or from freely discussing the reasons for her abortion with the abortion provider. The Circuit Court found that the legitimate state interests furthered by the law outweighed any burden imposed on a woman seeking an abortion.
The Circuit Court reasoned that H.B. 214 placed no prohibition on a woman seeking an abortion, as any woman remained free under H.B 214 to obtain an abortion, even of a child diagnosed with Down Syndrome.
Instead, H.B. 214 prohibits abortion providers from knowingly performing abortions under circumstances in which the provider knows that the reason for the abortion is because the child in question either has been diagnosed with Down Syndrome or is believed to have Down Syndrome. H.B 214 also provides penalties only for the abortion providers who violate the law and establishes no penalties for a woman obtaining an abortion because of a Down Syndrome diagnosis.
The Circuit Court disagreed with the plaintiffs-appellees' interpretation of Roe v. Wade as establishing an "absolute" right to abortion before viability of the fetus is established. The Circuit Court quoted the Supreme Court in Roe as follows: "In Roe . . . the Supreme Court said 'we do not agree' with the contention 'that a woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.' " The Circuit Court added that Planned Parenthood v. Casey "corrected the mistaken view of Roe that saw any or all pre-viability 'attempts to influence a woman's decision . . . as unwarranted,' saying that such an absolute rule was 'incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.' " The Circuit Court held "there is no absolute or per se right to an abortion based on the stage of the pregnancy."
The Circuit Court held that so long as legitimate state interests outweighed any burden on the woman to obtain an abortion, abortions can be restricted or regulated prior to viability. The Circuit Court, however, also held that the viability of the fetus was not germane to the analysis of H.B. 214. Instead, the Court reasoned that H.B 214 was intended to prevent and discourage discriminatory abortions of fetuses with Down Syndrome, regardless of the age of the fetus.
The Circuit Court in this decision both demonstrates the weakness of H.B. 214 and ironically provides guidance in circumventing the law.
The Circuit Court holds that H.B 214 is not a restriction on abortion but only prohibits a certain class of providers, those who know about the Down Syndrome diagnosis and know the Down Syndrome diagnosis is the reason the mother is seeking the abortion, from performing the abortion in question. In its majority opinion, the Circuit Court effectively advises any woman considering abortion due to a diagnosis of Down Syndrome in the unborn child as to how to obtain that abortion legally, derided as "don’t ask, don't tell" by the dissent, by simply not discussing her true reasons for the abortion with her abortion provider. The Circuit Court advises that the burden imposed by H.B. 214 does not affect a woman's so-called right to an abortion, but only limits who may perform the abortion.
The reversal of the lower court's injunction is therefore a Pyrrhic victory, in that by upholding the law, the Circuit Court reveals how limited the law is in achieving its purported ends.
All is not lost, however.
The Circuit Court's determination that laws protecting the "integrity and ethics of the medical profession" are legitimate state interests is promising, in that this reasoning can be used in the future to defend laws passed to protect medical professionals from coercion to participate in other medical procedures to which they are morally opposed, including abortion not related to a Down Syndrome diagnosis, transgender therapies and/or surgeries, or euthanasia.
Additionally, the Circuit Court's reasoning that laws may not regulate the thoughts or motives of a person, but only that person's expressed actions, can be helpful to defend against laws establishing "thought-crimes."
It is unlikely that this decision would be reversed on an appeal, mostly because the decision renders H.B 214 virtually powerless to prevent a woman from obtaining an abortion for any reason, just so long as her provider does not know her reason. The Circuit Court comments briefly on one dissent that raises a question of H.B. 214 prohibiting protected speech, and thus being an infringement of the First Amendment rights of a woman seeking an abortion, but since this argument was not raised with the Circuit Court, the Circuit Court does not address it in its majority opinion. It is unlikely that the Supreme Court would permit such First Amendment arguments on appeal if they were not raised in the lower court.
Overall, the Circuit Court's decision is mildly positive, at best. While it upholds H.B. 214, it also reveals the weakness of the law and essentially guts the statute.
by Amy Asseff, Esq. April 29th, 2021
The District Court for the Southern District of Ohio granted a preliminary injunction of H.B 214, codified as R.C. 2919.10, which prohibits any person from performing or inducing an abortion if that person has knowledge that (i) the fetus has been diagnosed with Down Syndrome or is believed to have Down Syndrome or that (ii) the mother is seeking the abortion because of a fetal Down Syndrome diagnosis. Preterm-Cleveland, the plaintiffs-appellees, sought the injunction in a pre-enactment challenge to the law on the claim that H.B. 214 was facially unconstitutional and per se invalid as a prohibition on a woman's absolute right to obtain an abortion prior to viability of the fetus. The Sixth Circuit Court disagreed, reversed the lower's court's decision, and lifted the injunction.
The Circuit Court examined the law and determined that it furthered three legitimate state interests: (i) protecting the Down Syndrome community against discriminatory abortions, (ii) protecting pregnant mothers whose unborn children have been diagnosed with Down Syndrome from being unduly influenced or pressured by their doctors into aborting the unborn child, and (iii) protecting medical professionals' ethical standards by "preventing doctors from becoming willing participants in Down Syndrome selective abortions." The Circuit Court also found that the law did not impose an undue burden on a woman's ability to obtain an abortion but only prevented a woman from obtaining an abortion from the doctor of her choice or from freely discussing the reasons for her abortion with the abortion provider. The Circuit Court found that the legitimate state interests furthered by the law outweighed any burden imposed on a woman seeking an abortion.
The Circuit Court reasoned that H.B. 214 placed no prohibition on a woman seeking an abortion, as any woman remained free under H.B 214 to obtain an abortion, even of a child diagnosed with Down Syndrome.
Instead, H.B. 214 prohibits abortion providers from knowingly performing abortions under circumstances in which the provider knows that the reason for the abortion is because the child in question either has been diagnosed with Down Syndrome or is believed to have Down Syndrome. H.B 214 also provides penalties only for the abortion providers who violate the law and establishes no penalties for a woman obtaining an abortion because of a Down Syndrome diagnosis.
The Circuit Court disagreed with the plaintiffs-appellees' interpretation of Roe v. Wade as establishing an "absolute" right to abortion before viability of the fetus is established. The Circuit Court quoted the Supreme Court in Roe as follows: "In Roe . . . the Supreme Court said 'we do not agree' with the contention 'that a woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.' " The Circuit Court added that Planned Parenthood v. Casey "corrected the mistaken view of Roe that saw any or all pre-viability 'attempts to influence a woman's decision . . . as unwarranted,' saying that such an absolute rule was 'incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.' " The Circuit Court held "there is no absolute or per se right to an abortion based on the stage of the pregnancy."
The Circuit Court held that so long as legitimate state interests outweighed any burden on the woman to obtain an abortion, abortions can be restricted or regulated prior to viability. The Circuit Court, however, also held that the viability of the fetus was not germane to the analysis of H.B. 214. Instead, the Court reasoned that H.B 214 was intended to prevent and discourage discriminatory abortions of fetuses with Down Syndrome, regardless of the age of the fetus.
The Circuit Court in this decision both demonstrates the weakness of H.B. 214 and ironically provides guidance in circumventing the law.
The Circuit Court holds that H.B 214 is not a restriction on abortion but only prohibits a certain class of providers, those who know about the Down Syndrome diagnosis and know the Down Syndrome diagnosis is the reason the mother is seeking the abortion, from performing the abortion in question. In its majority opinion, the Circuit Court effectively advises any woman considering abortion due to a diagnosis of Down Syndrome in the unborn child as to how to obtain that abortion legally, derided as "don’t ask, don't tell" by the dissent, by simply not discussing her true reasons for the abortion with her abortion provider. The Circuit Court advises that the burden imposed by H.B. 214 does not affect a woman's so-called right to an abortion, but only limits who may perform the abortion.
The reversal of the lower court's injunction is therefore a Pyrrhic victory, in that by upholding the law, the Circuit Court reveals how limited the law is in achieving its purported ends.
All is not lost, however.
The Circuit Court's determination that laws protecting the "integrity and ethics of the medical profession" are legitimate state interests is promising, in that this reasoning can be used in the future to defend laws passed to protect medical professionals from coercion to participate in other medical procedures to which they are morally opposed, including abortion not related to a Down Syndrome diagnosis, transgender therapies and/or surgeries, or euthanasia.
Additionally, the Circuit Court's reasoning that laws may not regulate the thoughts or motives of a person, but only that person's expressed actions, can be helpful to defend against laws establishing "thought-crimes."
It is unlikely that this decision would be reversed on an appeal, mostly because the decision renders H.B 214 virtually powerless to prevent a woman from obtaining an abortion for any reason, just so long as her provider does not know her reason. The Circuit Court comments briefly on one dissent that raises a question of H.B. 214 prohibiting protected speech, and thus being an infringement of the First Amendment rights of a woman seeking an abortion, but since this argument was not raised with the Circuit Court, the Circuit Court does not address it in its majority opinion. It is unlikely that the Supreme Court would permit such First Amendment arguments on appeal if they were not raised in the lower court.
Overall, the Circuit Court's decision is mildly positive, at best. While it upholds H.B. 214, it also reveals the weakness of the law and essentially guts the statute.
