Sixth Circuit Creates Split on Down Syndrome Abortion Laws; Invites Supreme Court Review

The Sixth Circuit Court of Appeals has created a split amongst the Circuit Court of Appeals, inviting the Supreme Court to decide on whether state laws criminalizing Down syndrome selective abortions are constitutional. This is a significant ruling that could challenge the way physicians counsel expectant mothers and the availability of reproductive choice.

The laws being challenged

Since North Dakota became the first in 2013, an increasing number of states have passed laws seeking to criminalize abortions when the reason for them is a Down syndrome test result. The Sixth Circuit Court of Appeals reviews cases from Michigan, Ohio, Kentucky, and Tennessee, the last three of which have all passed these sorts of laws that are colloquially referred to and reported in shorthand as “Down syndrome abortion bans.”

As has been covered in several posts on this site, these laws do not outright ban any abortion of a fetus positive for Down syndrome. Rather, in varying degrees, they establish liability–in the case of Ohio criminal and civil liability–for only the physicians who perform an abortion knowing the reason for the procedure is a Down syndrome test result. I emphasize “only” because typically these statutes explicitly state that the expectant mother is not only not liable, but cannot be considered an accomplice or an accessory to the crime the law makes of a Down syndrome selective abortion.

The Previous State of Court of Appeals Rulings

With the exception of North Dakota’s law, which has never been challenged, remains in force, and, according to the only abortion provider in the entire state has had no noticeable effect, to my knowledge every other state that has passed these laws have had a preliminary injunction issued to stop their enforcement while the courts consider the laws constitutionality.

In 2018, the Seventh Circuit Court of Appeals upheld an injunction against Indiana’s law, finding that the law’s challengers had a likelihood of success the law being ruled unconstitutional. In 2019, the Supreme Court denied review of the Seventh Circuit ruling in a per curium decision to which Justice Thomas joined, but offered a wordy concurrence.

As I wrote about in this post, in 2019, Justice Thomas agreed that certiorari (fancy legal term for review by the Supreme Court) should be denied because there was no split in the Circuit Court of Appeals. The Supreme Court typically waits until there is a split in the Court of Appeals rulings before weighing in, since, until there is a split, then the consistent Court of Appeals rulings are to be followed.

At the end of 2020, a Sixth Circuit panel of judges hearing a challenge to Tennessee’s Down syndrome abortion law did overrule a District Court’s issuance of an injunction. I wrote about that decision here.

At the beginning of 2021, the Eighth Circuit upheld an injunction against Arkansas’ Down syndrome abortion law. The Seventh Circuit decision reads as though it is an obvious outcome that these laws run afoul of Supreme Court abortion jurisprudence. The Eighth Circuit, on the other hand, begrudgingly rules that under existing Supreme Court abortion precedence they must find Arkansas’ law unconstitutional, BUT they vocally implore the Supreme Court to consider revising its rulings as the Eighth Circuit panel unanimously voiced support for the public policy goals of the Arkansas law to reduce the eugenic effects of Down syndrome selective abortions.

The Sixth Circuit en banc Majority Decision

The Seventh and Eighth Circuit decisions rule consistently that the Down syndrome abortion laws run afoul of current Supreme Court precedence because they effectively ban pre-viability abortions, something both Circuits and the dissents in the Sixth Circuit case state has been unconstitutional since Roe v. Wade first recognized a constitutional right to an abortion and as later interpreted by Planned Parenthood v. Casey in 1992. The majority in the Sixth Circuit case state that’s not exactly what Roe or Casey ruled and “banning” Down syndrome abortions is not exactly what these laws actually do.

An en banc decision is when an appeal is taken before a three-judge panel and then one of the parties appeals to the entire bench of a Court of Appeals to take another look at the issue. So, rather than be held to what at least two randomly-assigned judges think, an en banc decision is to express the view of that entire Court of Appeals.

Interestingly (for us lawyers at least), Judge Batchelder, the author of the 9-7 majority en banc decision, was the same judge who wrote the dissent in the three-judge panel that initially heard the complaints about the Ohio law.

  • What standard of review applies for evaluating abortion laws constitutionality?

On the first point of distinction with the dissent and the other circuits, the majority opinion flatly states:

The right to an abortion before viability is not absolute.

* * *

In Roe, 410 U.S. at 153, the Supreme Court said, “we do not agree” with the contention “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”

Rather, citing Roe, Casey, Gonzalez v. Carhart, and June Medical Services LLC v. Russo, the most recently decided Supreme Court case on abortion, the majority concludes that “the universal standard for abortion cases is the undue-burden test.” If you re-read my analysis of the original Down syndrome abortion law passed in North Dakota, you may understand my sense of validation, as that was the test I believed applied, despite my admitted struggle in my law school Con Law course.

  • What does the Ohio law “do”?

While the majority opinion derisively refers to the dissenting opinions’ “hammer-on-anvil pounding” that the Ohio law is a ban on Down syndrome abortions, and therefore unconstitutional, the majority opinion disagrees with what the Ohio law actually does.

… H.B. 214 is not a ban. Even under the full force of H.B. 214, a woman in Ohio who does not want a child with Down syndrome may lawfully obtain an abortion. H.B. 214 does not prohibit her from choosing or obtaining an abortion for that, or any other, reason. To the extent that H.B. 214 amounts to a prohibition, it prohibits a doctor from aborting a pregnancy when that doctor knows the woman’s particular reason, and that the reason is that (a) she knows or has reason to know that the forthcoming child will have Down syndrome and (b), at least in part because of that, she does not want it.

  • Majority finds Ohio has legitimate state interests for its law

Having framed the effect of the Ohio law as focused on the doctor’s knowledge, the majority considers whether Ohio has legitimate interests for its Down syndrome abortion law.

… H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests.

  • Majority finds Ohio law does not place a substantial obstacle in the path of a woman seeking an abortion

The opponents of the law argued it posed a substantial obstacle because it would (1) prevent an open conversation between the woman and her doctor by forcing her to withhold the reason for the abortion; and, (2) it would require her to “doctor shop” to find a doctor ignorant of the reason she was seeking an abortion.

Regarding interfering with a full, open conversation between a patient and a doctor, the majority cited the opposition’s own expert opinion to overrule this objection: “as the plaintiff’s expert put it — not “medically relevant.” Meaning, it is not necessary for a woman to share or for a doctor to inquire as to why a woman is having an abortion, or more specifically, it is not medically relevant if the woman is seeking an abortion because of a Down syndrome test result that she share that with her abortion provider.

Finally, regarding the “doctor shopping” objection, not to make this “I’mright.com,” but, again, I was gratified to see my analysis of whether having to travel or wait to find a doctor who could perform the abortion was ruled not an undue burden based on Supreme Court rulings finding other such delays and costs complaints did not amount to an “undue burden.”

For these reasons, the majority opinion ruled the law’s opponents did not have a substantial likelihood of prevailing in their contest of the Ohio law and overruled the preliminary injunction. This post has gone on long enough. In subsequent posts, I’ll summarize the interesting concurring opinions, then the dissenting opinions, and then finish with my analysis of how this opinion invites Supreme Court review and the implications if the Court grants certiorari.