For at least the second time this year, the Sixth Circuit has ruled on an Ohio law aimed at restricting access to abortion. In 2017, then-Governor John Kasich signed into law House Bill 214, which made it a felony for a doctor to perform an abortion if she has knowledge that the pregnant person is seeking an abortion because the fetus has or may have Down syndrome. Recently, in Preterm-Cleveland v. Himes, the Sixth Circuit affirmed a preliminary injunction against the law, in a challenge brought by several Ohio abortion providers. Though the state of Ohio claimed that the law was rooted in antidiscrimination principles, the law’s practical effect and the legal arguments made in favor of the law—particularly in the dissent in Preterm-Cleveland—make clear that Ohio is concerned less with protecting and providing for people with Down syndrome than with making it more difficult for pregnant people to access abortion.
The Ohio law—and the controversy surrounding it—reflects a deep divide in the Down Syndrome and disability rights communities over the issue of abortion. Legislators supporting the bill and some parents of children with Down syndrome argued that the abortion ban protected people with Down syndrome from discrimination and “modern day eugenics.” However, a number of disability rights advocates argued not only that the legislation used people with Down syndrome as a “a football to be punted for the sake of political points” but also that respect for bodily autonomy—including the right to abortion—is fundamental to disability justice.
The majority opinion in Pre-Term Cleveland, written by Judge Donald, avoided wading into this complex debate. Instead, the opinion focused on the long-settled law on abortion and prohibitions on the procedure before the point of viability.
In its briefing, Ohio claimed that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—which together established a constitutional right to access a pre-viability abortion free of undue burdens—applied only to regulations furthering a state interest in “protecting the women’s health or potential life” and did not apply to a regulation, like the one in H.B. 214, aimed at preventing discrimination. Judge Donald rejected this argument, stating that it “lacks rigor and is deceptive in its construction. The Supreme Court has made clear that, before viability, the state’s purported reason for prohibiting a woman from obtaining an abortion is not dispositive.” In fact, the court pointed out, the Supreme Court announced in Roe, and affirmed in Casey, that the ultimate right to choose abortion pre-viability is “categorical and absolute.”
Because success on the merits was so likely, the court affirmed the preliminary injunction.
Judge Batchelder filed a dissent, arguing that the district court provided “no evidence to support its bald assertion that” the law presented an undue burden. Judge Batchelder, citing to Justice Thomas’s concurrence in Box v. Planned Parenthood of Indiana and Kentucky, expressed concern about a return to “[t]he eugenicist impulse on display in Buck [v. Bell],” the 1927 Supreme Court case that upheld a forced sterilization law.
Throughout the litigation challenging H.B. 214, Ohio has repeated that its intent in enacting this law was to prevent discrimination—both as a “response to a modern eugenics trend targeting Down syndrome” and as an effort to protect those currently living with Down syndrome, for whom “[t]his push to eradicate Down syndrome sends a brutal message: the lives of people with Down syndrome are not as valuable as other lives.”
But the actual effects of H.B. 214 and the legal arguments made in its favor illustrate that the legislation was more concerned with restricting access to abortion than supporting people with Down syndrome and their families.
Despite purporting to protect people with Down syndrome, H.B. 214 did “nothing to improve the lives” of children with Down syndrome, nor did it address the state’s repeated “cuts in funding to assist and educate the developmentally disabled.” Instead of listening to parents of children with Down syndrome—who have advocated for legislation requiring the provision of detailed, accurate information about Down syndrome to expectant parents who receive a diagnosis—the legislators who championed H.B 214 have, for all intents and purposes, limited expectant parents’ access to information.
H.B. 214 creates liability for doctors only when they have knowledge that the reason for an abortion is a Down syndrome diagnosis. But in order to provide accurate information and counseling on raising a child with Down syndrome, which could actually promote a decision to carry to term, doctors must be aware of the diagnosis. When open communication might cut off a pregnant person’s access to abortion—or create criminal liability for a doctor—that conversation is unlikely to happen. In short, H.B. 214 not only fails to “promote life” but actually might make it less likely that a pregnant person would choose to move forward with a pregnancy after a Down syndrome diagnosis.
Finally, the legal arguments made in support of the law make clear that Ohio is primarily concerned with making it more difficult for women to access abortion. In her dissent, Judge Batchelder claimed that H.B. 214 might not pose an undue burden, because the person seeking an abortion does not have to “disclose her motivations” to the doctor. Moreover, even if the doctor became aware, she could refer the pregnant person to another physician. The express purpose of the law, however, is to reduce the number of abortions that result from a Down syndrome diagnosis. If the legal justification for the law is essentially that pregnant people will still be able to make the ultimate decision to terminate the pregnancy, then the law serves not to protect against discrimination but only to add layers of bureaucracy and inconvenience to the process of obtaining an abortion.
Judge Batchelder’s argument—that H.B. 214 does not actually restrict a person’s ability to procure an abortion even on the basis of a Down syndrome diagnosis—does not appear anywhere in the state’s briefs to the Sixth Circuit. Instead of attempting to argue within the long-established Roe-Casey framework, which may have been the more prudent course, Ohio urged the Sixth Circuit to re-interpret Roe & Casey not as establishing a categorical right to a pre-viability abortion but as mandating a balancing of the state’s interests with the interests of the pregnant person—even before viability. Rather than making the arguments most likely to persuade, as the state would do if its primary purpose were to secure the constitutionality of this legislation, Ohio made strategic arguments aimed at eroding the protections Roe and Casey provide for the right to an abortion more generally.
Ultimately, as with its recent efforts to bankrupt abortion providers, ban abortion at six weeks, and prohibit the use of a safe and common abortion method, Ohio’s decision to criminalize doctors who provide abortions to pregnant people who have learned that their fetus has or may have Down syndrome is part of the state’s ongoing campaign to cut off access to abortion.