By Dave Andrusko
Ignoring a brilliant dissent by Circuit Judge Alice Moore Batchelder, a divided three judge panel of the 6th U.S. Circuit Court of Appeals voted today to block Ohio’s Down Syndrome Non-Discrimination Act (HB 214) from going into effect. Under HB 214 it would be illegal for abortionists to commit or attempt to commit an abortion based on a diagnosis of Down syndrome.
By a vote of 2-1, the panel backed U.S. District Judge Timothy Black who issued an injunction in March 2018, in a lawsuit brought by Planned Parenthood and other abortion providers.
Following overwhelming approval in the state House, on December 22, 2017, then-Gov. John Kasich signed the measure which prohibits abortion for the sole reason of a Down syndrome diagnosis.
The Ohio Senate had approved the measure 20-12. This followed the House’s overwhelming 63-30 vote in support which took place November 2017.
“Unborn persons with Down syndrome deserve the same protections afforded to those already born through the Americans with Disabilities Act,” said Stephanie Ranade Krider, vice president of Ohio Right to Life. “While we are obviously saddened by the decision of the Court, this serves to show the moral contradictions and outright discrimination imposed by abortion jurisprudence that sorely need to be settled. We urge the attorney general to request an en banc review by the entire 6th Circuit.”
Krider added, “We also pray that the time may come sooner than later that the U.S. Supreme Court will overturn Roe and allow states to settle in law what we already know to be true: an unborn human is as deserving of human rights as any other already born.”
The two judges who voted to overturn HB 214 were appointed by Presidents Clinton and Obama, respectively.
Obama appointee Circuit Judge Bernice Bouie Donald, going to and fro, concluded, “The state’s interest in preventing discrimination does not become compelling until viability.”
In her lengthy and thoughtful dissent, Circuit Judge Batchelder relied heavily on the insights of Supreme Court Justice Clarence Thomas in Box v. Planned Parenthood of Indiana and Kentucky, a recent decision in which the Justices voted to uphold one part of a 2016 Indiana abortion law [requiring that the bodies of aborted babies be disposed of in a humane fashion] while laying over for another day a second part.
The latter was Indiana’s law banning eugenic abortions. Thomas wrote this “should not be interpreted as agreement with the decisions below. ”
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey [the 1992 Supreme Court case] to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
After refreshing her colleague’s memories about the eugenic impulse that Justice Thomas so eloquently recaptured, Batchelder writes
Ohio enacted the Antidiscrimination Law, H.B. 214, to counteract such eugenicist practices concerning the prenatal Down Syndrome population. The law prevents a physician from performing an abortion when the physician knows the abortion is sought not because the woman did not intend to become pregnant, but because the child in the woman’s womb tested positive for Down Syndrome. Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down Syndrome babies would undermine the principle that the Down Syndrome population is equal in value and dignity to the rest of Ohio’s population, and would do deep damage to the integrity of the medical profession.
The majority holds Ohio’s choice unconstitutional. But controlling precedent requires that we review laws like H.B. 214 under an undue-burden analysis, which is fact-intensive and must consider the State’s interests and the benefits of the law, not just the potential burden it places on women seeking an abortion. Neither the district court nor the majority here makes a genuine attempt to meet that demand, which leaves their decisions insupportable and incorrect.
It is a powerful dissent. If, as Ms. Krider suggests, the entire 6th U.S. Circuit Court of Appeals agrees to review the case, we know Judge Batchelder’s reasoning should lead the court to uphold Ohio’s Down Syndrome Non-Discrimination Act.