Two weeks ago (in Preterm Cleveland v. Himes), a divided panel of the Sixth Circuit barred the state of Ohio from enforcing its law that prohibits medical providers from performing an abortion if they have “knowledge that the pregnant woman is seeking the abortion, in whole or in part, because” her baby has been diagnosed as having Down syndrome.
In her majority opinion (joined by chief judge Guy Cole), Judge Bernice Bouie Donald declared that the Roe/Casey regime confers a “categorical” right to abortion before viability. (Donald was appointed by President Obama, Cole by President Clinton.)
In her dissent, Judge Alice Batchelder (an appointee of President George H.W. Bush) argued that the undue-burden analysis under Casey instead requires a “fact-intensive” inquiry that also takes into account “the State’s interests and the benefits of the law, not just the potential burden it places on women seeking an abortion.” Having failed to conduct that inquiry, the majority and the district court had no basis for enjoining the law.
Batchelder further pointed out that the Supreme Court’s ruling in Gonzales v. Carhart (2007) allowed the federal ban on partial-birth abortion to apply before viability. She also invoked Justice Thomas’s observations (from his forceful concurring opinion last spring in Box v. Planned Parenthood) that laws like Ohio’s “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics” and that the Court’s abortion rulings do not require states “to allow eugenic abortions.”
I’m pleased to see that the state of Ohio has today filed a petition for rehearing en banc. The petition argues that the panel majority erred when it concluded that there is a “categorical” right to a pre-viability abortion: “Indeed, Casey itself upheld a law prohibiting minors from getting abortions without parental consent or court approval—that is, a law that banned those who could obtain neither consent nor court approval from getting an abortion.” The petition also emphasizes the “two critically important state interests” that the law advances:
First, anti-eugenics laws protect the dignity of people living with conditions or traits targeted for abortion.… The practice of targeting unborn children with Down syndrome for abortion devalues the lives of people living with Down syndrome.
Second, anti-eugenics laws are necessary because eugenic abortions “do deep damage to the integrity of the medical profession.” [Quoting Batchelder dissent.] Humans are not show dogs or racehorses.… Every human life matters—certainly the people of Ohio may enact laws reflecting that view—and the medical profession [which “actively promoted eugenic ‘solutions’” in the early 20th century] must never again be associated with a contrary view.