By Dave Andrusko
The vote was not as one-sided as it should have been—only 9-7—but earlier today the Sixth Circuit Court of Appeals reversed a preliminary injunction against Ohio’s Down Syndrome Non-Discrimination Act ]. Championed by Ohio Right to Life, H.B. 214 “prohibits a doctor from performing an abortion if that doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome,” as stated by Judge Alice M. Batchelder in her majority opinion. Then-Gov. John Kasich signed the Act into law in 2017.
Mike Gonidakis, president of Ohio Right to Life, said, “This court ruling brings us one step closer to ensuring that vulnerable babies with special needs are not marked for death because of who they are. Every life is worth living and every precious and unique human being is worthy of complete protection under law.”
As NRL News Today has documented on many occasions, H.B. 214’s legal trail is long and winding. As noted above, the measure was signed into law in 2017. In March 2018, U.S. District Judge Timothy Black issued an injunction in response to a lawsuit brought by Planned Parenthood and other abortion providers. On October 11, 2019, a divided three-judge panel backed Judge Black’s ruling. Judge Batchelder wrote a scintillating dissent.
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.
Writing for the majority in today’s Preterm-Cleveland v. Himes case, Judge Batchelder revisited some of that same legal territory and much more. She began her 30-page-long opinion
In plain terms, H.B. 214 prohibits a doctor from performing an abortion if that doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome.
In her analysis, Judge Batchelder summarized the state of Ohio’s view of the benefits of the law.
Ohio asserts that H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the practice of Down-syndrome-selective abortions and the stigma associated with it; (2) pregnant women and their families from coercion by doctors who advocate the abortion of Down-syndrome-afflicted fetuses; and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests.
As for whether the law imposes an “undue burden” on a woman’s right to obtain an abortion, she concludes
We hold that the restrictions imposed, or burdens created, by H.B. 214 do not create a substantial obstacle to a woman’s ability to choose or obtain an abortion. Moreover, those restrictions are reasonably related to, and further, Ohio’s legitimate interests. Therefore, H.B. 214 is valid in all conceivable cases and the plaintiffs cannot succeed on the merits of their claim.