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‘The Right to an Abortion Before Viability Is Not Absolute’: In Loss for Planned Parenthood, Divided Federal Appeals Court Allows Ohio’s Down Syndrome Abortion Ban


A starkly divided federal appeals court on Tuesday gave the green light for an Ohio law banning doctors from performing abortions based on a prenatal Down syndrome diagnosis to take effect, holding that it does not impose an “undue burden” on a woman’s ability to obtain the procedure. Dividing the full U.S. Court of Appeals for the Sixth Circuit along largely predictable lines, the panel’s 9-7 vote produced an 111-page en banc ruling filled with heated rhetoric —  in a majority opinion, four concurring opinions (one concurred in part and in the judgment), and six dissents.

In 2018, the American Civil Liberties Union filed a lawsuit by four in-state abortion providers — two of which were Planned Parenthood affiliates — challenging the bill, HB 214, signed by then-Ohio Gov. John Kasich (R) and criminalizing abortions on the basis of a Down syndrome diagnosis. Republicans justified the measure as protecting people with disabilities, but the providers blasted the rationale as a fig leaf designed to clamp down on women’s reproductive rights.

Attacking the legislation as facially unconstitutional under rights established in Roe v. Wade, the ACLU sought and obtained an injunction to prevent enforcement of the law in the court of U.S. District Judge Timothy S. Black, a Barack Obama appointee in Ohio. The Sixth Circuit later upheld Judge Black’s decision in a 2-1 ruling by a three-judge panel.

The full bench of Sixth Circuit judges flipped the case in favor of the state. Former President Donald Trump altered the makeup of that circuit to be firmly conservative.

In vacating the previous rulings, the full slate of judges held that a woman’s right to an abortion before fetal viability was still subject to regulation by the state.

“The right to an abortion before viability is not absolute,” wrote U.S. Circuit Judge Alice Batchelder, an appointee of former President George W. Bush. Batchelder was also the lone dissenting judge in the circuit court’s initial 2-1 decision.

Batchelder also asserted that under the strict wording of the law, the case is not actually about a woman’s “right or ability to obtain an abortion,” because under HB 214 “a woman in Ohio who does not want a child with Down syndrome may lawfully obtain an abortion solely for that reason.”

“H.B. 214 does not prohibit her from choosing or obtaining an abortion for that, or any other, reason,” she wrote. “It bars a doctor from aborting a pregnancy when that doctor knows the woman’s specific reason and that her reason is: the forthcoming child will have Down syndrome and, because of that, she does not want it.”

According to Batchelder, the only parties that would actually be affected by the legislation would be a woman who “does not want a child with Down syndrome” who also “wants her abortion performed by a doctor who knows that is her reason.”

“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,” she wrote.

A brief 4-page concurring opinion, Judge Richard Allen Griffin, also a George W. Bush appointee, reasoned that the law should stand because of the state’s interest in “proscribing complicity by its physicians in the discriminatory and misguided practice of eugenics.”

“Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today,” Griffin wrote. “Following Nazi Germany’s horrific implementation of eugenics to its natural conclusion, the eugenics movement lost its popularity. Tragically, however, the practice continues today with modern-day abortions. Specifically, the selective abortion of unborn babies who are deemed ‘unfit’ or ‘undesirable’ is becoming increasingly common.”

Those words echo earlier reproductive freedom cases which long predated Roe.

Several of the dissenting judges took a bluntly harsh approach to their colleagues’ majority decision.

Judge Karen Nelson Moore, a Bill Clinton appointee, said the majority’s ruling “warps the law-of-the-circuit doctrine” to prevent reaching the proper conclusion.

“[A] triumvirate of concurrences reveals a view of precedent and history that combined with the majority opinion render any effort to secure the right to an abortion dead on arrival in this court,” she wrote. “Because the majority and the concurring opinions are simply analytically unsustainable assaults on reproductive freedom, I dissent.”

Judges Bernice B. Donald, an Obama appointee, Julia Smith Gibbons, another Bush appointee, both took particular offense with their colleagues repeated references to eugenics.

Donald said the law will likely cause patients to withhold information from their doctors and had “nothing to do with eugenics and everything to do with the state ripping away from a woman her right to make a tremendously personal decision.” She also argued that labeling such selective abortions as “eugenics” aimed at “improving stock” “necessarily implies that the prevalence of Down syndrome in society ‘deteriorates stock.’”

Gibbons said that the “shadow of the eugenics movement” was clear in the majority’s opinion.

“Eugenics certainly lives on, as my colleague argues, but not in a woman’s decisions about her reproductive health,” she wrote. “The shadow of the eugenics movement materializes when the state wrests those decisions from her. The burden on choice is no less because the state’s chosen method is to penalize her doctor.”

Alexa Kolbi-Molinas, the senior staff attorney at the ACLU’s Reproductive Freedom Project, said that Ohio’s approach is more about stripping away reproductive choice than it is about protecting people with disabilities.

“If the politicians behind these laws really cared about the lives of people with disabilities they would stop punishing people who have abortions, and make sure people with disabilities have community-based supports, inclusive education, integrated housing and employment, and the freedom to make decisions about their lives and bodies,” Kolbi-Molinas wrote in a statement.

The Ohio Attorney General’s office did not immediately respond to a request for comment.

Read the full slate of opinions below.

6th Circuit Abortion Opinion by Law&Crime on Scribd

[image via Michael B. Thomas/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.