By Dave Andrusko
On Friday, the 6th Circuit Court of Appeals granted the state of Ohio’s petition to rehear en banc (all members participating) a decision placing on hold the Down Syndrome Non-Discrimination Act. Ohio Right to Life argued the law “would have protected unborn children with a Down Syndrome diagnosis from the deadly discrimination of elective abortion.”
Oral argument before will take place on March 11.
As we reported, on October 11, a divided three-judge 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.
As Circuit Judge Alice Moore Batchelder explained in her brilliant dissent, H.B. 214
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.
Judge Batchelder extensively 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 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.