In December 2017, Ohio Governor John Kasich signed into law House Bill 214, which prevented any physician from performing an abortion if he knew that one of the reasons the woman sought the abortion was because her baby had Down syndrome. Planned Parenthood and Preterm-Cleveland, however, joined forces and challenged the law almost immediately. Now, over one year later, the fight has arrived at the Sixth Circuit Court of Appeals.
Planned Parenthood and Preterm-Cleveland filed their lawsuit in February 2018. It was first heard in Federal District Court, where Judge Timothy Black agreed with Planned Parenthood and Preterm-Cleveland and granted a preliminary injunction in March. The law was set to take effect just eight days later.
Judge Black, in making his decision, asked about a similar situation in Indiana, where the court there struck down a law very similar to Ohio’s H.B. 214. The Judge in that case ruled, “It is a woman’s right to choose an abortion that is protected, which, of course, leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice.”
Judge Black relied on that Indiana case when he issued the injunction and also said, “The state’s argument that a woman must make this choice from behind a veil of ignorance, oblivious to the circumstances of the child she is carrying, finds no support in the law.”
Sixth Circuit Court of Appeals
The State of Ohio appealed Judge Black’s decision, and arguments were heard in the Sixth Circuit Court of Appeals last week. The State of Ohio was represented by attorney Ben Flowers who argued the position that neither Roe v. Wade nor Planned Parenthood v. Casey guaranteed a woman’s right to a pre-viability abortion. Women are granted the right by federal law to decide “whether to have a child…not whether to have a particular child,” the State argued.
Court of Appeals judges asked about the Seventh Circuit Court of Appeals’ decision to throw out a law that would prohibit abortions from being performed due to a fetus’ gender, race, or disability. Attorney Flowers simply responded that sometimes “one circuit gets it wrong.” Apparently, he chose not to distinguish the Ohio law from the previously reversed Indiana law.
Two interesting facts about Ohio’s House Bill 214 are the lack of inquiry requirement and the fact there are no consequences for the woman in this situation. The bill says a doctor who performs an abortion knowing one of the reasons is the baby has Down syndrome could face jail time, but there is nothing that says a woman cannot seek an abortion because her baby has Down syndrome.
The lack of inquiry factor was a question that the Sixth Circuit examined.
Judge Donald pointed out that because of the lack of inquiry factor, a doctor could perform an abortion perfectly legally as long as he did not ask whether a Down syndrome diagnosis was a factor in the woman’s decision.
The Sixth Circuit provided no timetable for when a decision can be expected.