- The Washington Times - Tuesday, April 13, 2021

A federal appeals court on Tuesday allowed to take effect an Ohio law that prohibits doctors from performing abortions because the fetus has Down syndrome.

The 9-7 ruling from the 6th U.S. Circuit Court of Appeals lifted an injunction against the law, which criminalizes abortions based on a fetus being diagnosed with Down syndrome. The law was passed in 2017 but has been paused during litigation.

“The right to an abortion, even before viability, is not absolute,” Judge Alice M. Batchelder, appointed by President George W. Bush, wrote for the court’s majority.

The court said Ohio has an interest in protecting the Down syndrome community.

The statute requires a doctor performing an abortion due to Down syndrome to face a fourth-degree felony charge, which is punished by up to 18 months in prison and the loss of a medical license.



Tuesday’s ruling reverses a lower court that reasoned the law violates the right to an abortion established by the 1973 landmark Supreme Court ruling Roe v. Wade.

The full 6th Circuit panel rejected the lower court’s decision on the basis that the plaintiffs, four medical providers and a doctor, were unlikely to succeed in their lawsuit to strike down the state’s law.

Chief Judge R. Guy Cole Jr., an appointee of President Clinton, argued in a dissent the law violates a pregnant person’s First Amendment right to communicate with a doctor about their reason for seeking an abortion.

“The state may not ban speech for being offensive or even discriminatory,” he wrote.

Chrisse France, executive director of Preterm, an Ohio abortion clinic that was involved in the litigation, said the ruling was an affront on the relationship between individuals and health care workers.

“Every day, Preterm’s staff and physicians talk with our patients about their lives, struggles, and realities,” she said. “We work with our patients to ensure that each person is treated with respect and receives the highest quality health care, while politicians seek to undermine that relationship. Today, the Sixth Circuit allowed politicians to exploit the real needs and concerns of people with Down syndrome to push their anti-abortion agenda.”

The 7th U.S. Circuit Court of Appeals in 2018 blocked a similar abortion law in Indiana.

The split from the circuit courts creates an issue the Supreme Court may want to step in and address, prompting pro-life groups to cheer the ruling.

Marjorie Dannenfelser, president of the pro-life group Susan B. Anthony List, said the state law is reasonable and compassionate.

“We also recognize and celebrate that this legislation has the potential to pose a significant challenge to Roe v. Wade,” she said. “We encourage the high court to act now that this issue has received further consideration in the lower courts. Discriminatory abortions based on sex, race and disability are no less than modern-day eugenics, and must swiftly come to an end.”

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