A divided federal appeals court lifted the hold Tuesday on an Ohio law that prohibits doctors from performing abortions based on a fetal diagnosis of Down syndrome, a case considered nationally pivotal.
Judges of the 6th U.S. Circuit Court of Appeals narrowly ruled to reverse a lower court’s stay on the 2017 law that was based on the likely success of overturning it as unconstitutional.
A majority of the court, which has moved rightward in recent years with six appointments by former President Donald Trump, said the law doesn’t impede a woman’s right to an abortion.
The majority said Planned Parenthood and several other abortion providers represented by the American Civil Liberties Union erred in basing their case on a woman’s “absolute right” to an abortion until the fetus is viable outside the womb, because that right is neither absolute nor germane to the case.
“In this case, Ohio does not rely on its interest in protecting potential fetal life,” the ruling said. Its interests in passing the law, instead, were to protect the Down syndrome community from “the stigma it suffers from the practice of Down-syndrome-selective abortions,” to protect women who suspect Down syndrome from coerced abortions and to protect the medical community from unethical doctors, they wrote.
The majority characterized dissenting judges who contend the law is intended to prevent abortions for their “hammer-on-anvil pounding.”
The ACLU had sued the state health department, state medical board and county prosecutors in 2018 on behalf of abortion providers, arguing the law infringes on a woman’s constitutional right to a procedure that is legal. The state argued the law does not ban the procedure but instead regulates doctors.
The 2017 law had been put on hold while the legal challenge is decided. It is one of several Ohio abortion restrictions tied up in court.
During a rare hearing before the entire 16-judge panel in March 2020, Jessie Hill, an attorney for the ACLU of Ohio, argued that the Down syndrome law unconstitutionally seeks to take “the ultimate decision” on abortion away from the woman.
This and similar proposals around the country have triggered emotional debate over women’s rights, parental love, and the trust between doctor and patient.
Hill said the law would “cut off communication between a woman and her doctor.”
Ohio Solicitor General Ben Flowers said the law seeks to prevent abortions that target and discriminate against those with Down syndrome, which would send them a message that people including some medical providers “do not think people like you are as valuable as others.”
That argument dovetailed with the contentions of anti-abortion groups, including Ohio Right to Life, which labeled the law an “anti-discrimination” measure during legislative debate.
Abortion rights groups were joined by some parents of children with Down syndrome in opposing that argument. They claimed the law was using the genetic disorder to gain sympathy for a new restriction. They call the law a “reason ban” that attempts to get into an abortion seeker’s decision-making process, which they argue is illegal.
In legal filings, attorneys for the government contend that the sidelined law does not infringe on a woman’s constitutional rights because it “does not prohibit any abortions at all.”
Dissenting judges rejected that notion outright.
“I will call it what it is: the long-arm of the state — wielding the threat of a class-four felony — forcefully reaching into a profoundly intimate conversation between doctor and patient and telling the patient to be silent about her medical history or worse, purposefully lie about it,” Judge Bernice Donald wrote in a dissent.
In his dissent, Judge Guy Cole wrote that the majority’s insistence that “the issue is not really about a woman’s right to an abortion” because its ban “merely restricts the information and opinions a woman may share with her doctor” is an “attempt to sidestep one constitutional problem” involving abortion rights that “only lands it in another” involving free speech.
The law specifically prohibits physicians from performing an abortion if they’re aware that a diagnosis of Down syndrome, or the possibility of such a diagnosis, is influencing the decision. Doctors could face a fourth-degree felony charge, be stripped of their medical license, and be held liable for legal damages. The pregnant woman faces no criminal liability under the law.
Alexander Maugeri, an attorney for then-President Donald Trump’s Justice Department, told the judges during oral arguments that the “Ohio law serves an important purpose” and lets people with Down syndrome know they “have lives that are worth living.”