Ohio can enforce ban on abortions after Down syndrome diagnosis

On Apr 13, 2021

A federal appeals court has ruled in favor of an Ohio law that prohibits doctors from performing abortions if they know the abortion is sought because of a fetal Down syndrome diagnosis.

COLUMBUS – Ohio’s ban on abortions after a fetal diagnosis of Down syndrome doesn’t violate a woman’s ability to obtain an abortion, a divided Sixth Circuit Court of Appeals ruled Tuesday.

The law, passed by Ohio’s Republican-controlled Legislature and signed by GOP Gov. John Kasich in 2017, imposes criminal penalties on doctors who perform abortions if they’re aware that a Down syndrome diagnosis, or the possibility of a diagnosis, is the reason for seeking the abortion. The penalty is a fourth-degree felony.

Four abortion providers filed suit: Preterm-Cleveland, Planned Parenthood of Southwest Ohio, Women’s Med, Planned Parenthood of Greater Ohio and a doctor. The law was blocked by a federal judge in March 2018, and the case has been tied up in federal court ever since.

On Tuesday, the full Sixth Circuit Court of Appeals ruled 9-7 that Ohio’s law did not “create a substantial obstacle to a woman’s ability to choose or obtain an abortion.” The appeals court reversed the injunction blocking the law from taking effect.

The court ruled that a woman’s right to an abortion is not absolute. Ohio’s law, which prevents a doctor from performing an abortion because of a Down syndrome diagnosis, is not an undue burden on the woman, wrote Judge Alice Batchelder, who was nominated by former President George H. W. Bush.

“By preventing the doctor from joining the woman as a knowing accomplice to her Down syndrome-selective decision making, House Bill 214 prevents this woman from making the doctor a knowing participant (accomplice) in her decision to abort her pregnancy because her fetus has Down syndrome,” Batchelder wrote. “As limitations or prohibitions go, this is specific and narrow.”

Batchelder said the law only prevented doctors from knowingly performing an abortion because of Down syndrome, but if the woman doesn’t provide a reason, the abortion could still proceed.

“Even though House Bill 214 does not prohibit Down syndrome-selective abortions and might not actually reduce the incidence of such abortions, by prohibiting doctors from knowingly participating in this practice, it sends a resounding message condemning the practice of selective abortions,” Batchelder wrote.

Other judges were blunter, comparing these abortions to eugenics.

“Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not,” wrote Judge Richard Allen Griffin, who was nominated by former President George W. Bush. “Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.”

Ohio Right to Life, which worked to pass the law, applauded the decision.

“The eugenic practice of singling out human lives for death because of a Down syndrome diagnosis has no place in our society,” said Mike Gonidakis, president of Ohio Right to Life. “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.”

Several judges disagreed with the ruling.

“Eugenics certainly lives on, as my colleague argues, but not in a woman’s decisions about her reproductive health,” wrote Judge Julia Smith Gibbons, who was nominated by former President George W. Bush. “The shadow of the eugenics movement materializes when the state wrests those decisions from her.”

Judge Bernice Bouie Donald, nominated by President Barack Obama, argued that the law was justified on “a remarkably flimsy constitutional reed” of asking women to lie or withhold information from their doctors.

Ohio can enforce ban on abortions after Down syndrome diagnosis

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