6th Circuit panel hears oral arguments in Ohio’s ban on eugenic abortions

By Dave Andrusko

Benjamin M. Flowers, Ohio deputy solicitor general

A crucial step in Ohio’s efforts to ban abortions for the sole reason that the baby has Down syndrome took place in Cincinnati yesterday before a three-judge panel of the 6th Circuit Court of Appeals .

Chief Judge R. Guy Cole, Judge Bernice Bouie Donald, and Judge Alice Batchelder were asked by a state attorney to overturn a decision by U.S. District Court Judge Timothy Black to grant Preterm Cleveland and other abortion clinic’s motion for a preliminary injunction on March 14, 2018. That was just eight days before the Dismemberment Abortion Ban (S.B. 145) was set to take effect.

According to reporter Laura Hancock, Attorney Jessie Hill, who represents the plaintiffs, “acknowledged H.B. 214 doesn’t require physicians to inquire why a woman is getting an abortion.”

In that one sense, she agreed with Benjamin Flowers, the Ohio deputy solicitor general, who told the panel “that a doctor ‘has no obligation to inquire,’ about a woman’s reason for an abortion,” Hancock wrote. “Therefore, Ohio’s new Down syndrome abortion ban does not pose an undue burden to women and isn’t unconstitutional, he said.”

Not so, Hill responded.

“[T]he evidence in the record indicates that doctors often, if not almost always, know when this is the case because of how these patients come to them,” she said. “They’re generally referred after counseling and meeting with an internal fetal medicine specialist, for example.”

Flowers said the state “is not banning abortion but regulating it,” Hancock wrote. Moreover, “the state has an interest in fighting against discrimination, Flowers said.”

“If women are selecting children with Down syndrome for abortion, if doctors are negatively counseling their patients to abort children when they have a Down syndrome diagnosis, the message that sends not only to children or people carrying a child but to people who are 30 years old is that if you have Down syndrome your life is not worth as much,” Flowers said. “And that is the interest Ohio wants to protect.”

At least one judge asked if Flowers was concerned that if the panel agreed with the state of Ohio, it could set up a conflict with a seventh circuit court of appeals decision which overturned an Indiana law that bans abortions when they are for reasons of the baby’s gender, race, or if he/she has a disability,

“Sometimes one circuit gets it wrong,” Flowers replied.

“This is a conflict we should create?” Judge Cole asked.

“Yes,” the attorney said.

NRL News Today readers will recall that last April, in Planned Parenthood of Indiana, a divided three-judge panel struck down Indiana House Enrolled Act 1337. HEA 1337 requires that women be informed of this prohibition as part of Indiana informed consent process. It was first blocked by U.S. District Court Judge Tanya Walton Pratt, who has a lengthy track record of siding with the abortion industry.

The Supreme Court will decide whether to hear HEA 1337 sometime in its current term.

With respect to Indiana’s law, as NRL News Today previously reported, 18 attorneys General and the governor of Mississippi filed a “friend of the court” brief, laying out the case why HEA 1337 is constitutional.

Indiana Attorney General Curtis Hill filed a separate 41-page brief, in which he argued

[U]ntil this case no court has ever extended Roe and Casey to the decision of a woman otherwise willing to bear a child to terminate her pregnancy because she finds a particular child unacceptable—i.e., to the decision of which child to bear. Indeed, Roe specifically disavows “that the 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.” Accordingly, it was entirely reasonable for Judge Easterbrook to point out that “[u]sing abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.” More particularly, Judge Easterbook observed, “[n]one of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”

To the contrary, in Gonzales v. Carhart, the Court already permitted a ban on one particular “type of abortion” that “implicates additional ethical and moral concerns that justify a special prohibition.” Whereas Gonzales approved banning a particular method of abortion, Indiana’s antidiscrimination law bans particular reasons for abortion.

In their 38-page brief, the 18 state AGs and the governor of Mississippi explained why “a State may ban the invidiously discriminatory practice of aborting unborn children solely because of their race, sex, or disability diagnosis” and why that prohibition must operate pre-viability:

Finally, that Indiana’s Antidiscrimination Provision includes pre-viability abortions does not affect its constitutionality because the State’s interests do not correspond to the unborn child’s stage of development. In the traditional abortion regulation context, this Court has held that the State’s interest in protecting an unborn child’s life is “not strong enough” to prohibit a pre-viability abortion. [See Casey.] The logic is that the more developed the unborn child, the stronger the State’s interest in keeping that child alive. This reasoning has no applicability where the strength of the State’s interests does not correspond to the unborn child’s stage of development. The State’s interest is the prevention of the discriminatory elimination of classes of human beings; it makes no difference from the point of view of that interest if unborn children with Down syndrome are systematically eliminated at 10 weeks or 25 weeks, if the result is the same. Genetic screening for Down syndrome now regularly occurs “as early as 10 weeks” into the pregnancy, well before the unborn child is viable. … So to prohibit effectively the discriminatory elimination of this class of society, the Provision must operate pre-viability.

No timetable has yet been established for a decision by the 6th circuit panel.