The en banc Sixth Circuit today delivered an important pro-life victory to the state of Ohio. By a vote of 9 to 7 in Preterm-Cleveland v. McCloud, the court ruled that the state may enforce its law (H.B. 214) that prohibits a doctor from performing an abortion with the knowledge that the mother’s reason for having the abortion is that her child has Down syndrome. The court thus vacated the district court’s preliminary injunction against the law.
Judge Alice Batchelder, who dissented from the initial panel decision on appeal, wrote the majority opinion. Five of her colleagues joined her opinion in its entirety, and three others joined most of it. The case generated a lot of separate opinions—three concurring opinions as well as an opinion concurring in part and concurring in the judgment, as well as six dissents—but that fact should not obscure the majority’s unity on essential points.
Here is a summary of Judge Batchelder’s ruling. The first three sets of propositions garnered a majority.
1. Plaintiffs claim that the right to an abortion before viability is absolute. But the right to abortion, even before viability, is not absolute. (8-9.) Viability is not germane to the analysis, as the state’s interests and the burdens of the law do not differ at any point in the pregnancy. (9-10.) The issue here is not really about a woman’s ability to obtain an abortion, as a woman in Ohio who does not want a child with Down syndrome may lawfully obtain an abortion for that reason. The law does not apply against her. It applies only against the doctor who would perform the abortion and only when that doctor knows that the woman seeks the abortion because her child has Down syndrome. (10.)
2. On the question of which opinion in the Supreme Court’s 2020 decision in June Medical Services v. Russo sets forth the standard of review we must apply, we accept as the controlling law of our circuit the panel decision in EMW Women’s Surgical Center v. Friedlander (2020). This is EMW’s holding:
Under the Chief Justice’s controlling opinion [in June Medical], a law regulating abortion is valid if it satisfies two requirements.
First, it must be reasonably related to a legitimate state interest. Because we are to apply the traditional rule of deference to the state’s medical and scientific judgments, this requirement is met whenever a state has a rational basis to use its regulatory power.
Second, the law must not have the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
Under the law of our circuit, a woman faces a substantial obstacle when she is deterred from procuring an abortion as surely as if the government has outlawed abortion in all cases. Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden in a large fraction of the cases in which the regulation is relevant.
3. The law advances the state’s legitimate interests by (a) protecting the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions; (b) protecting pregnant women and their families from coercion by doctors; and (c) protecting the integrity and ethics of the medical profession. Plaintiffs have not shown that the burdens imposed by the law will prevent a significant number of women from obtaining an abortion. (18-21.)
4. Plurality: Even under the alternative undue-burden test advanced by the June Medical plurality, the law would not impose an undue burden. The burdens that the law imposes are not substantial, nor do they outweigh the law’s benefits. (23-26.) As with the Supreme Court’s ruling in Gonzales v. Carhart (2007) upholding the federal ban on partial-birth abortion, the pregnant woman can obtain an abortion through an acceptable alternative approach (i.e., using a doctor who doesn’t have the knowledge of the woman’s reason that triggers the prohibition). (26-28.) The law does not create a substantial burden in any case, much less in a large fraction of relevant cases. (28-30.)