Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 13, 2021

Sixth Circuit En Banc Uphold's Ohio's Ban on Abortions After Down Syndrome Diagnosis

  Ohio Can Enforce Ban on Abortions After Downs Syndrome Diagnosis

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.

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The decision is here: Pre-Term Cleveland v. McCloud (6th Cir. en banc Apr. 13, 2021)

https://lawprofessors.typepad.com/gender_law/2021/04/sixth-circuit-en-banc-upholds-ohios-ban-on-abortions-after-down-syndrome-diagnosis.html

Abortion, Constitutional, Reproductive Rights | Permalink

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