Federal appeals court overturns a restrictive abortion law in Ohio

October 14, 2019 • 10:45 am

According to the article below in the Cincinnati Enquirer (click on screenshot), a three-judge panel of the federal Sixth Circuit Court of Appeals (not the whole court) overturned by a vote of 2-1 a law passed in 2017 that blocked any abortions of fetuses diagnosed with Down syndrome, regardless of term. The State is appealing the decision to the full court. I’m not sure how a subset of the court has the right to overturn laws, but what do I know?

You can see the entire bill here. It stipulates the following:

No person shall purposely perform or induce or attempt to perform or induce an abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking the abortion , in whole or in part, because of any of the following:

(1) A test result indicating Down syndrome in an unborn child ;

(2) A prenatal diagnosis of Down syndrome in an unborn child;

(3) Any other reason to believe that an unborn child has Down syndrome .

(C) Whoever violates division (B) of this section is guilty of performing or attempting to perform an abortion that was being sought because of Down syndrome, a felony of the fourth degree .

(D) The state medical board shall revoke a physician’s license to practice medicine in this state if the physician violates division (B) of this section.

(E) Any physician who violates division (B) of this section is liable in a civil action for compensatory and exemplary damages and reasonable attorney’s fees to any person, or the representative of the estate of any person, who sustains injury, death, or loss to person or property as the result of the performance or inducement or the attempted performance or inducement of the abortion. In any action under this division, the court also may award any injunctive or other equitable relief that the court considers appropriate.

(F) A pregnant woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of division (B) of this section is not guilty of violating division (B) of this section or of attempting to commit, conspiring to commit, or complicity in committing a violation of division (B) of this section.

Note that the woman herself isn’t punished—only the physician, which is weird but certainly effective in stopping abortion of Down-syndrome babies. As far as I can see, the law was never implemented, as it was blocked by a single Federal judge until the three-panel decision a few days ago. (The panel has two Democratic judges and one Republican one; I’m guessing that the Republican was the dissenting vote.)

This bill is almost certainly unconstitutional, as it goes even father than Roe v. Wade, which prohibited states from banning abortions during the first trimester, but allowed them to restrict abortions somewhat during the second trimester and to prohibit them entirely during the third trimester. This bill doesn’t specify which trimester, but appears to prohibit abortions at any time if the woman knows that the fetus has Down syndrome. (That syndrome, by the way, comes from the acquisition in the fetus of an extra 21st chromosome, so the genome has three copies instead of two.)

What the lawmakers intended was to prevent “discrimination” against fetuses that had Down syndrome, because it constituted “social bias against a vulnerable group”. Presumably that rationale could be used to ban abortions if the fetus had any condition that would allow it to live if brought to term, regardless of the quality of that life. But such restrictions make little sense if healthy fetuses are allowed to be aborted, and so the law violates Roe v. Wade.

For a condition like Down syndrome, one should, in my view, allow abortion right up to birth, for it’s the mother (and father) who would have to take care of a child who, while it could live a substantial time, is also a substantial burden. In fact, I think that all abortions should be legal up to birth, even if the fetus could be viable if birth were induced or the fetus removed from the mother prematurely. But I digress.

As states are busy trying to restrict abortion any way they can, using “minority group discrimination” to prevent early-term abortions is not a strategy that will fly. In fact, the law was blocked early on by that one federal judge because “of the likelihood that if there were a full trial, the abortion providers would prevail.”

But we all know that the present Supreme Court —a very conservative one—will at some point revisit Roe v. Wade, and although the Supreme Court has a respect for precedent, it’s not an absolute respect. Further, if Ruth Bader Ginsburg leaves the court during a Republican Presidency, all bets are off.

h/t: Ken

26 thoughts on “Federal appeals court overturns a restrictive abortion law in Ohio

  1. It’s just more evidence of Republican hypocrisy, since they won’t provide support to parents of a Down’s Syndrome child after it is born.

  2. I’m not sure how a subset of the court has the right to overturn laws, but what do I know?

    Federal appellate courts sit in panels of three to hear and decided cases. The party on the losing end of a panel decision can then ask that all the judges in active service on that court (the Sixth Circuit, which heard this case, appears to have about 30 such judges) to rehear the case sitting together (or what is known as “en banc“). A petition for rehearing en banc is then circulated to all the sitting judges and, if one of them so requests, all the judges will be polled to see whether they wish to rehear the case. If a majority votes for rehearing, the panel opinion is vacated and the case is set for oral argument before the entire court. (Since it take s a majority of the court just to grant en banc rehearing, such a vote almost always indicates that the judges believe the original panel decision was wrongly decided and that that opinion will be reversed.)

    Where a petition for rehearing en banc is denied by a federal appellate court, the only remaining avenue of relief left to the losing party is to seek discretionary review from SCOTUS via a petition for writ of certiorari.

    That’s the “inside baseball” answer for anyone interested.

      1. I blush with embarrassment to be mentioned in the same sentence with Sean Carroll.

        As Sam Ervin was wont to say, I’m just a simple country lawyer (one who’s spent his time practicing in the big city, but a simple lad all the same).

  3. “For a condition like Down syndrome, one should, in my view, allow abortion right up to birth. . . .”

    By what logic would you stop at birth? Postponing the decision to dispose of babies until after they’re born would allow a more accurate assessment of just how substantial any “substantial burden” might be.

    1. I will reply once, and this discussion is ended for me. I have said earlier that with babies born with irreparable medical conditions that will cause them to suffer and then die soon, euthanasia should be allowed. Down syndrome newborns don’t fall in that class, because some people are willing to adopt them. Therefore, after birth, the babies can be put up for adoption and will find parents, and will no longer be a burden to the parents. I presume you are not asking me why I don’t think Down Syndrome children should be euthanized after they are born. If for some reason some of them will suffer needlessly and die young, then yes, perhaps euthanasia is a solution. Otherwise most of them seem to be able to be viable and have fairly happy lives for several decades, and there are parents willing to adopt them.

      1. I think it is more the case of trying to unpack birth as the arbitrary dividing line.

        A Downs syndrome baby that is minutes away from being born is, in your view a legitimate case for abortion, but, in my view, your argument “there are people prepared to adopt a just born viable baby, therefore don’t kill it” applies equally to the just about to be born baby.

    2. If a woman has a constitutional right to obtain an abortion early in her pregnancy (which she undoubtedly does, at least for the time being), is there some reason that the right should be denied her because a fetal test (one that she may not herself have requested, or that may have been done without her knowledge and consent, or that may even have been imposed upon her by her by force of law) comes back positive for Down Syndrome?

      I think the anti-abortion forces are trying to posture this issue in terms of eugenics to use as a wedge to end abortion rights completely. (Were they to succeed, it would mean that, if Roe were overruled, abortion rights questions would not simply revert to the states; it would mean that abortion rights would be extinguished entirely.)

  4. There are various cases — some of which essentially present facial challenges to the continued validity of the doctrine established in Roe v. Wade — currently percolating through our federal judicial system. It is only a matter of time until one or more of them wind up on the famous stone staircase of the Supreme Court’s Corinthian-columned building at #1 First Street in Washington, DC.

    Some of the justices of the Supreme Court seem to be itching to hear such a case. (Clarence Thomas, for one, has all but openly declared his desire to do so in an opinion near the end of the Court’s last term.) Given the High Court’s current composition, women’s reproductive freedom (at least in the red states that have been rushing to enact evermore stringent anti-abortion laws) may well rest upon the slender reed of the swing vote of a Chief Justice who has openly expressed his own hostility to abortion rights, but who may nonetheless have institutional concerns over the reputation and integrity of the Court that bears his name.

    1. I doubt the court has the guts. Even the stupid ones such as Thomas know the masses are against them on this one. After Trump is gone and the democrats are in power a lot of this anti abortion crap will go away.

      1. Lifetime appointments tend to diminish concerns over public opinion. (That was the primary rationale for their inclusion in Article III.)

        I strongly suspect that Chief Justice Roberts (and the Court’s four liberals) would just as soon dodge the abortion issue indefinitely. Problem is, although it takes the votes of five of the nine sitting justices to decide a case, it takes just four votes to grant certiorari to hear a case.

        Consequently, the Court’s four hardcore conservatives have it within their sole power to force the Court to hear an abortion case. I’m certain Justice Thomas wants to do so, and very likely Jutice Alito, too. That leaves it up to the two Trump appointees, Gorsuch and Kavanaugh. They don’t have enough of a track record yet to predict anything with confidence, but I think we need anticipate the worst.

        One thing for sure, if the four hard-right justices vote to hear a case presenting a facial challenge to Roe v. Wade, it will put CJ Roberts on the hot seat — probably the hottest seat in our nation’s capital for as long as the case remains pending.

        1. Maybe so but frankly they have a lot more to answer for than just social issues. The recent arrest of these clowns working with Giuliani shows just how corrupt and wrong the citizens united case was. The dark money corruption of U.S. elections is a mess and any country that wants in can have at it. Our so-called constitution will need a lot of overhaul.

          1. Oh, I agree, buddy. Of the thousands of cases in which certiorari is sought, SCOTUS tends to hear and decide about 60 or 70 cases a year (down from about 100 a couple decades ago. The Court disposes of additional cases summarily on its “non-argument” calendar.)

            So there are sufficient judicial resources available to allow the Court both to affirm Roe v. Wade and to overrule Citizens United.

            What’s currently lacking are the votes to do so.

  5. I suppose the argument for banning Down Syndrome abortions on the basis of “social bias against a vulnerable group” was used disingenuously by the anti-abortion crowd. Still, that specific abortion ban would have been well understood by Thomas VanderWoude, mentioned in “Faith Versus Fact”, who drowned while saving his grown Down Syndrome son. DS individuals who do not have heart defects can live close to the normal life expectancy, although sometimes they suffer from certain ageing disabilities prematurely. Their lives are not just “fairly happy”; those of us who are close to them discover that they have a curious, even inspiring, gift for happiness.

  6. “I think that all abortions should be legal up to birth, even if the fetus could be viable if birth were induced or the fetus removed from the mother prematurely”

    I’m vehemently pro-choice, but I find this view a touch extreme. My own view tends to be that there’s a sliding scale of mother / fetus rights where, at the point of conception, the fetus has zero rights and, at birth, full human rights. It might not be a strictly linear scale because, during the early stages of pregnancy, I’d tip the balance towards rights of the mother and in the last trimester, the fetus. I do agree that abortion should be legal pretty much up till birth, but the reasons in that last trimester should be pretty damn exceptional – abnormalities that would cause significant quality of life issues and/or imminent threats to the health of the mother should the pregancy continue. To put it another way, during early pregancy termination should be as much of an issue as getting a tooth pulled; in the last month or two, it’s up there with a liver – not something a doctor is going to remove because you’ve changed your mind.

    Equally, where the state mandates that a person has to bring a fetus to term, the state has to be there to pick up the burden if the mother doesn’t want to, or isn’t able to, look after the baby after birth. Early pregnancy scans to determine abnormalities etc. should be free and performed well before it becomes a major issue to get an abortion (which should be free too). It smacks of blatant hipocricy that the pro-life crowd seem to be the ones also against social welfare and public healthcare.

    1. I don’t think our host is advocating that women should wait until the last minute to abort their fetuses. Every pro-abortion-rights person I know thinks abortions should be performed as early and safely in a woman’s pregnancy as possible. What I think our host is saying is that the government has no business making late-term abortions a crime. I agree.

      Late term abortions are very rare, and performed under extreme circumstances — generally because of a serious threat to the life or health of the mother or because the fetus is so deformed as to be non-viable. I see no need for our criminal justice system to intrude on these wrenching decisions.

      But if you’ve got statistics that show that substantial numbers of women are waiting until the last minute to have an abortion simply for convenience or fun, I for one would be willing to rethink my position.

      1. Put simply if you don’t want to be pregnant, you will abort early, because being pregnant really, really sucks. It’s really not worth nine months of cramping and sickness if you’re not getting anything out of it.

        Ergo women who abort very late are almost always cases of a wanted pregnancy that went wrong. And inflicting additional cruelty and shame on them is monstrous.

        1. I most wholeheartedly agree.

          And this Downs Syndrome thing is a red herring. A pretext being used by the anti-abortionists to advance their cause.

          I have every sympathy for Downs Syndrome parents but that comes to an abrupt halt when some of them argue for enforcing DS children on others. Or allow themselves to be so used by the anti-abortionists.

          I also have sympathy for parents of paraplegics crippled by accident or disease, but would we ever accept such a parent arguing for the promotion of accidents or against cures for polio ‘because that discriminates against paraplegics’?


  7. AllYa’All know ? .THIS. matter, again, is exhausting. Just tiring.

    IF a person does not want to be pregnant, then
    guess what ?
    That person does not have to be pregnant.

    P e r i o d. END of story.

    O wait. But the ‘story’ is of persons who
    are the Globe’s female ones. So .not. The End,
    is it ? cuz “others” … … so many damned others … …
    seem to think that they have some sorta say,
    some sort of doings with … … her innards.


    EXACTLY HOW would Not Females like it IF
    I were to come on to your urethra and meatus
    and, by MY say and by MY laws, .MAKE YOU.

    UNLESS YOU ARE feminist AND AS WELL of thus,
    https://en.wikipedia.org/wiki/Jane_Collective ideologically, then ALL need to s t o p with
    your messing with .ANY. Females’ anatomies.



  8. Not all cases of Down Syndrome are equal. Most of us think of the high-functioning people who have some quality of life. But there are others who live only a short time, or linger for years as nursing-home patients.

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