The Sixth Circuit Court of Appeals on Tuesday upheld an Ohio law prohibiting doctors from performing abortions when they know the reason a woman seeks an abortion is that her baby has Down syndrome , an important victory for pro-life groups.
The Full Circuit ruled 9-7 in favor of the law that a lower court had previously issued an injunction against, saying it was an unconstitutional violation of a woman’s right to abortion. Appeals courts usually hear cases in three-judge committees, but sometimes reconsider panel decisions as a full court in major cases.
Justice Alice Batchelder, who was first appointed by former President George HW Bush, led the majority to say the law does not violate a woman’s right to abortion because it does not restrict than doctors who know the reason for a woman’s abortion – not the woman or the abortion itself.
“There is no absolute or per se right to an abortion depending on the stage of pregnancy,” Batchelder wrote.
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“In our opinion, the effect of HB 214 on this woman is to deny her the doctor of her choice when, and only when, that doctor of her choice is a doctor who knows that her reason for the abortion is because ‘She does not want to. a child with Down syndrome, ”Bachelder wrote.
“As far as limitations or prohibitions go, it is specific and restricted,” she continued, and therefore does not present a “substantial obstacle” to a woman’s ability to have an abortion. .
The dissenting justices, however, argue that Ohio law is in fact a total ban on certain types of abortion and therefore runs counter to Supreme Court precedent.
“Before viability, the interests of the state are not strong enough to support a ban on abortion or the imposition of a substantial obstacle to a woman’s effective right to elect the procedure,” wrote the judge. Bernice Donald, citing the Supreme Court case Planned Parenthood v. Casey. “Regardless of whether exceptions are made for particular circumstances.”
Many believe that eugenics ended with the horrors of the Holocaust. Unfortunately, this was not the case. The philosophy and sheer evil that drove Hitler and Nazi Germany to murder millions of innocent lives continue today.
“This is exactly what HB 214 does,” continued Donald, appointed by former President Barack Obama. “It prohibits certain abortions at any time during a woman’s pregnancy – based solely on why the woman is seeking an abortion – and it makes no exceptions for the health of the mother.”
She argued that Ohio law “forcefully entered a deeply intimate conversation between doctor and patient and told the patient to keep their medical history silent or worse, to deliberately lie about it.”
The liveliest discussion in the 111-page ruling, however, was whether the law constituted “anti-eugenics law.” Judge Richard Griffin, appointed by George W. Bush, wrote very precisely on the subject, echoing a concurring 2019 opinion from Supreme Court Justice Clarence Thomas that linked abortion to eugenics.
“Many believe eugenics ended with the horrors of the Holocaust,” Griffin wrote. “Unfortunately, no. The philosophy and sheer evil that drove Hitler and Nazi Germany to murder millions of innocent lives continue today.”
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He added: “Tragically … the practice continues today with modern abortions. Specifically, selective abortion of unborn babies deemed ‘unfit’ or ‘unwanted’ is becoming more and more common.”
Judge Jeffrey Sutton, appointed by George W. Bush, agreed. He asked, “How come an anti-eugenics law is not the kind of law that reasonable people could compromise on in the context of larger debates over abortion policy?”
Griffin also inserted into his opinion a passage from Bachelder’s dissent on the original appeal board to hear the law.
“Judge Thomas explained how Indiana law ‘and other similar laws promote the compelling interest of a state in preventing abortion from becoming a tool in modern eugenics,'” Bachelder wrote. “The same is true of Ohio’s HB 214 law that is before us today.”
Julia Gibbons, appointed by George W. Bush, sidestepped Griffin’s accusation in her dissent.
The idea that women and doctors who abort babies because they have Down syndrome is “an inadequate comparison,” she said, because it “ignores the many complex and very personal reasons that can lead a woman to have an abortion ”.
“But the American eugenics movement shares a majority point of view goal in this case: both seek to control a woman’s reproductive decisions,” Gibbons said. “Eugenics certainly lives on … but not in a woman’s decisions about her reproductive health. The shadow of the eugenics movement materializes when the state takes those decisions away from her.”
Donald’s dissent also said a woman who chooses to abort a baby because she has Down’s syndrome is not eugenic because she is “just a woman making a choice” and not a state mandate.
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She also questioned the connections made between Planned Parenthood founder Margaret Sanger and the early 20th century eugenics movement that were established by Thomas and later Griffin.
She argued that not only were Sanger’s views irrelevant to the case, but they were largely in line with traditional figures of the time like former Presidents Woodrow Wilson and Theodore Roosevelt. Donald also argued that Sanger was not a very important figure in the eugenics movement.
Griffin, meanwhile, pointed out that Sanger vocally endorsed the Supreme Court decision in Buck v. Bell, who upheld a forced sterilization law in Virginia.
Abortion providers who challenge the law can ask the Supreme Court to overturn the Sixth Circuit decision and reinstate the preliminary injunction. It is also possible that the case will continue on the merits of the law in the lower court.
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