Divided Panel Blocks Ohio’s Down Syndrome Non-Discrimination Act

WASHINGTON –On Friday, a divided three-judge panel of the 6th U.S. Circuit Court of Appeals voted 2-1 to block Ohio’s Down Syndrome Non-Discrimination Act from going into effect. If enacted, the legislation would prevent an abortionist from performing or attempting to perform an abortion based on a diagnosis of Down syndrome.

“No child deserves to die because of an extra chromosome,” stated Carol Tobias, president of the National Right to Life Committee. “An unborn child deserves the same protections as any other American protected by the Americans with Disabilities Act.”

By a vote of 2-1, the panel backed U.S. District Judge Timothy Black who issued an injunction in March 2018, in response to a lawsuit brought by Planned Parenthood and other abortion providers.

In her dissent, Circuit Judge Alice Moore Batchelder cited U.S. Supreme Court Justice Clarence Thomas in Box v. Planned Parenthood of Indiana and Kentucky, Inc., writing,

Justice Thomas explained how Indiana’s law “and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” The same goes for Ohio’s law H.B. 214 before us today. Even more to the point here, perhaps, given the majority’s analysis, is the further explanation that, “[w]hatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions.”

Judge Batchelder continued,

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.

Ohio’s attorney general can request an en banc review of the law by the full 6th Circuit Court.

“This 2-1 decision by the three-judge panel shows just how inconsistent abortion law is in the U.S.,” stated Tobias. “Every person, regardless of ability or whether she is born or unborn, should be accepted in life and protected by law.”