Full 6th U.S. Court of Appeals hears challenge to Ohio law forbidding abortions based solely on Down syndrome diagnosis

By Dave Andrusko

At least among several of the judges who spoke yesterday, there appeared to be considerable skepticism that a law forbidding abortions performed solely because the baby is diagnosed with Down syndrome constitutes an “undue burden” on abortion-minded women.

Originally passed into law in 2017, Ohio’s Down Syndrome Non-Discrimination Act “was challenged in court by the ACLU and Pre-Term, an Ohio abortion facility, shortly after,” Ohio Right to Life explains.  U.S. District Court Judge Timothy S. Black quickly granted a preliminary  injunction to Planned Parenthood and Preterm-Cleveland.  The state challenged the decision, but a three judge panel upheld the injunction last October. The state then persuaded the full 6th Circuit to hear the case, which it did Wednesday.

The best and most complete account I’ve read appeared in Courthouse News. Kevin Koeninger wrote

Attorney Ben Flowers argued on behalf of Ohio and told the court Wednesday the law was passed to prohibit “Down syndrome selective abortions” and prevent abortion providers from straying into practices that some might consider eugenics.

Flowers said the law sends a message that these abortions “are so heinous and so inhumane that doctors can go to jail and lose their licenses.”

The state’s attorney repeatedly told the judges his opponents failed to provide any evidence the law will place an undue burden on women seeking abortions, and said its practical effect is unknown because it has yet to be implemented

Arguing on behalf of Preterm-Cleveland, attorney Jessie Hill “was grilled by several judges throughout her remarks about whether the law places an undue burden on women or simply regulates the doctors who perform the abortions.”

While Hill called the law “an absolute ban,” U.S. Circuit Judge Raymond Kethledge said, “It doesn’t regulate the woman at all directly,” adding later that, “It’s not a ban.”

Judge Kethledge “joined several of his colleagues in voicing their opinion that the law regulates only doctors, and not the women seeking abortions,” Koeninger wrote.

For example, U.S. Circuit Judge Jeffrey Sutton

sided with Kethledge, and noted it was “not a terrible idea” to pass legislation that limits a doctor’s ability to perform selective abortions, whether they are based on a medical diagnosis, race, or any other consideration.

As NRL News Today previously reported, in January the Trump administration filed an amicus brief, weighing in on behalf of the state.  

“Nothing in Ohio’s law creates a substantial obstacle to women obtaining an abortion,” the Justice Department said.  In its filing, the Justice Department also wrote “and nothing in the Constitution or Supreme Court precedent requires States to authorize medical providers to participate in abortions the providers know are based on Down syndrome.”

Koeninger reported that attorney Alexander Maugeri represented the Justice Department Wednesday and

said the government believes the Ohio law expresses the view that Down syndrome lives have value, and allows the state to prevent women from being pressured into abortions by portions of the medical community.

In a “What you need to know,” distributed prior to the oral arguments, Ohio Right to Life wrote

We are hopeful that with [Wednesday’s] en banc review, the court will reverse its earlier decision and end the fatal discrimination of abortion to continue targeting some of the most vulnerable unborn, those with disabilities. In the U.S., between 60-90% of unborn children with a Down Syndrome diagnosis are aborted. All Ohioans, regardless of a prenatal diagnosis, deserve the same right to life as anyone else.

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