A federal appeals court panel affirmed a lower court’s ruling that blocked Ohio’s law banning abortions performed because of a prenatal diagnosis of Down syndrome.
A panel of the U.S. Court of Appeals for the Sixth Circuit ruled, 2-1, that the Ohio law violated the Supreme Court’s 1973 decision in Roe v. Wade, specifically by disregarding whether the fetus is viable at the time of the abortion.
In the majority opinion, Judges Bernice Bouie Donald, an Obama appointee, and R. Guy Cole, a Clinton appointee, affirmed the lower court’s ruling and noted the state’s argument that the decision in Roe v. Wade “expressly rejected the claim that the right to abortion is ‘absolute’ and therefore entitles a woman to obtain an abortion ‘for whatever reasons she alone chooses.’”
The state said the intention of Ohio’s law was to prevent discrimination against children with a disability; hence, its name is the Antidiscrimination Law.
The judges said, however, that 20 years later in Planned Parenthood v. Casey the Supreme Court upheld Roe, affirming that “[t]he woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade.”
“It is a rule of law and a component of liberty we cannot renounce,” the judges said.
Senior Judge Alice Batchelder, a George H.W. Bush appointee, dissented, however. She affirmed the state’s interest in fighting discrimination against those with disabilities.
Batchelder also cited Supreme Court Justice Clarence Thomas’ statement that an abortion law in Indiana “and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Ohio enacted the Antidiscrimination Law, H.B. 214, to counteract such eugenicist practices concerning the prenatal Down Syndrome population. The law prevents a physician from performing an abortion when the physician knows the abortion is sought not because the woman did not intend to become pregnant, but because the child in the woman’s womb tested positive for Down Syndrome.
In 2017, former Ohio Gov. John Kasich (R) signed the bill into law that prohibited abortion in the case of unborn babies with Down syndrome.
The following year, Judge Timothy Black, an Obama appointee, said, “Federal law is crystal clear,” and he struck down the law.
“It violates the right to privacy of every woman in Ohio and is unconstitutional on its face,” he stated.
According to Cleveland.com, a spokesman for Ohio Attorney General Dave Yost said the office would ask the full Sixth Circuit Appeals Court to hear the case.
Susan B. Anthony List President Marjorie Dannenfelser expressed disappointment with the panel’s ruling.
“Discrimination abortions have no place in any modern, inclusive society,” she said in a statement. “Ohio lawmakers acted on the will of the people in creating a safe haven for unborn children with Down syndrome, and two years later they are still fighting to implement the law.”
Dannenfelser added that when the Supreme Court declined to review a similar Indiana law, the Court “left open the question of whether the Constitution allows states to protect unborn children from the eugenic practice of discrimination abortion and made clear they welcomed further consideration by the lower courts.”
“Urgency is growing for the Supreme Court to weigh in on this question so these precious children can be protected from lethal discrimination,” she said.