The U.S. Sixth Circuit Court of Appeals, sitting en banc, just issued an important decision that upholds Ohio’s 2017 law (H.B. 214) that bars physicians from performing an abortion when they know a Down syndrome diagnosis is the primary reason for a woman opting to end her pregnancy.

The  9-7 decision in Pre-Term Cleveland v. McCloud marks a major win for the U.S. pro-life movement, which has supported state laws restricting the unlimited abortion license only to see them overturned at the district or appellate court level. Under the Ohio law, doctors face license revocations and possible imprisonment of up to 18 months if they violate the statute.

Planned Parenthood was shaken by the unexpected ruling, which reversed a previous decision by a three-judge panel for the Sixth Circuit that overturned the law.

“This abortion ban inserts politicians between patients and their doctors, denying services to those who need it,” Planned Parenthood president Alexis McGill Johnson told Reuters.

Ed Whelan, in an April 13 post on National Review’s Bench Memos, flagged the majority opinion, written by Judge Alice Batchelder, and explained how it applied the Supreme Court’s 2020 decision in June Medical Services v. Russo as a standard for review on the constitutionality of the Ohio law.

Summarizing the Majority Opinion

Whelan provided the following takeaways from the majority opinion: 

“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.)”