The Sixth Circuit Court of Appeals has stayed an injunction, thereby allowing the State of Tennessee to enforce its “Down syndrome abortion ban”. Will it? And, what will this lead to?
Heartbeat & Down syndrome abortion bans
In the summer of 2020, the Tennessee Legislature enacted legislation limiting abortion in the following circumstances:
- Sec. 216 banned abortion when a heartbeat could be detected;
- Sec. 217 banned a person performing an abortion “if the person knows that the woman is seeking the abortion because of the sex of the unborn child,” “the race of the unborn child,” or the “potential for Down syndrome in the unborn child.”
Both are Class C felonies, which in Tennessee means a person convicted of either bans could face imprisonment for not less than 3 years and not more than 15 years along with a fine up to $10,000.
A federal district court enjoined the enforcement of both bans while the constitutionality of the new sections is considered. The State of Tennessee appealed to stay the injunction of just Sec. 217, generally referred to as the “reasons ban” and what I will alternately refer to as the “Down syndrome abortion ban.”
The Majority Opinion
A three-judge panel heard the appeal. Two voted to stay the injunction and one dissented.
The majority in Memphis Ctr for Repro Health v. Slaterly, 3:20-cv-00501, were not convinced by the Plaintiffs’ two-pronged “void for vagueness” argument. The first prong, they argued, was that the language quoted above from Sec. 217 was too vague for being able to charge someone as “knowing” that a woman was seeking an abortion “because of” a Down syndrome or sex or race prenatal test result. Whereas the district court agreed, the two appellate judges did not:
“Close cases can be imagined under virtually any statute. The problem that poses is addressed, not be the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”
(quoting United States v. Williams, 553 U.S. 285, 306 (2008)). In other words, the majority believed the statute’s language was sufficiently clear that any case where whether the prosecution had established “knowing” or “because of” was an evidentiary matter for the jury to decide.
The second prong concerned the law’s medical emergency affirmative defense. A physician could raise as a defense that in his or her reasonable medical judgment a medical emergency required the abortion. The majority did not necessarily disagree that this affirmative defense was vague. But, because Supreme Court precedence had invalidated “exceptions” to criminal statutes, but not “affirmative defenses,” the majority concluded it lacked any controlling precedence for invalidating a statute for having what, they all but conceded, is a vague affirmative defense.
The Dissent
The dissent agreed with the Plaintiffs in the district court that both Sec. 217’s prohibition of Down syndrome abortions and the medical emergency affirmative defense were void for vagueness.
On the ban, the dissent focused on the phrase “because of”:
Above all, the ultimate decision as to whether to terminate a pre-viability pregnancy is a woman’s alone and not her physician’s. The statute before us threatens to prevent physicians from engaging in even brief discussions about the woman’s personal considerations without fear of prosecution, and the uncertainty induced by the statute threatens to inhibit the exercise of a constitutionally protected right.
(quotation and citation omitted).
Regarding the medical emergency affirmative defense, the dissent noted that in addition to the physician exercising his or her reasonable medical judgment that an emergency required the abortion, that decision would then be reviewed by a board of medical examiners. So, it required both the physician’s subjective belief there was a medical emergency and then an objective finding by the board of medical examiners of the same. The dissent noted this was in violation of existing abortion caselaw that had invalidated a subjective/objective exception to a criminal statute. This is why the majority makes the distinction that the caselaw relied upon by the dissent concerned “exceptions” and not “affirmative defenses.” But, as the dissent notes, “whether labeled as an affirmative defense or an exception, [it] serves as a carve out to prevent prosecution of physicians exercising appropriate medical judgment, for the preservation of the life or health of the mother.” (quotation and citation omitted). Having the same effect as law invalidated by controlling precedent, the dissent agreed that the affirmative defense was unconstitutionally vague.
The dissent ends perhaps where it could have begun by noting that fundamentally, any limitation on pre-viable abortions is unconstitutional under the Supreme Court case of Planned Parenthood of Southeastern Penn. v. Casey. Further, Tennessee is prohibited by the same case from imposing an “undue burden on a woman’s ability” to seek a pre-viability abortion.
In the final analysis, Defendants have identified no benefits that justify the burden imposed by the statute on the woman’s right to exercise her constitutionally protected reproductive choice.
Will Tennessee Enforce Its Law?
The obvious consequence of the Sixth Circuit’s stay of the injunction on Sec. 217 is what was reported in headlines:
This is noteworthy, further, considering that the majority of states within Sixth Circuit’s jurisdiction have enacted similar bans. The Sixth Circuit is comprised of Michigan, Ohio, Kentucky, and Tennessee. Except for Michigan, every other state has enacted a Down syndrome abortion ban. However, Kentucky and Ohio’s have been stayed as their laws wind their way through appellate review.
So, Tennessee is the first in the Sixth Circuit that may enforce its Down syndrome abortion ban.
But, will it?
North Dakota has had a Down syndrome abortion ban since 2013 and it has not been stayed by court order. Yet, to my knowledge, there has not been a single enforcement action brought by the state. Indeed, when the New York Times followed up after the law had been on the books for awhile, the state’s only abortion provider said it had not seen any effect from the law.
Given the demands on a state’s criminal justice system, it seems unlikely that a state prosecutor will sink the resources into finding out if an abortion has been performed in his or her county because of a prenatal test result for Down syndrome.
Perhaps a Tennessee prosecutor will prove me wrong, but if one doesn’t, as I suspect none will, then, as I’ve written before, the ban is little more than a symbolic gesture and one in which Down syndrome is being used in a broader pro-life advocacy agenda targeted at eliminating all abortions, not just reasons-based ones.
The Unintended Consequence of Tennessee’s Law & the Court’s Opinion
While the dissent may be correct that the State of Tennessee did not offer evidence of any benefits of its law, as I’ve written previously, there is some value to symbolic gestures. Given the point made in a recent post of mine, government policy has made a huge impact on the future generations born–or more accurately not born–with Down syndrome in countries with socialized medicine. If those countries enacted similar Down syndrome bans, very likely, it would stem the severe reduction rates of each generation.
Indeed, as covered here, two of the three reasons banned for having an abortion are supported by a still current professional medical ethics committee opinion. The Ethics Committee of the American College of Obstetricians & Gynecologists has stated that having an abortion of sex or race is unethical as it expresses and has a discriminatory impact overwhelmingly against historically discriminated against groups, namely women and non-Whites.
But, it’s what ACOG says about prenatal testing that will very likely exacerbate a significant problem in the way prenatal genetic testing is administered. Tennessee’s law and its enforcement of it will very likely lead to less honesty, less accuracy, in how expectant mothers are counseled about prenatal genetic testing and abortion.
The Tennessee law will foster lying.
Under current prenatal testing guidelines, and indeed since 2007, ACOG has instructed obstetricians that they must discuss the option of abortion following a prenatal diagnosis for Down syndrome. This stems all the way back to early 1980’s when ACOG issued its first liability alert. It alerted its members that in the wake of a wrongful birth lawsuit, they must document that they offered AFP testing to their patients and what their patients’ decision was so as to avoid being sued should their patients give birth to a child with Down syndrome.
While the dissenting opinion is correct that legally a woman’s choice to terminate is hers alone, it betrays great naivete of the role professional counseling has in guiding a woman on making that decision. Therefore, OBs will commit malpractice if they do not counsel their patients about abortion following a prenatal test result for Down syndrome, but then are they risking being co-conspirators to violate Tennessee’s Down syndrome abortion ban if the woman chooses, as most women do, to have an abortion?
To avoid that possibility, then, practitioners will abide by their medical guidelines, tell their patients that abortion is an option, but then tell them to conceal their reasons if asked at the abortion clinic as to why they are seeking to terminate their pregnancies.
The net effect of this conflict between professional guidelines and state laws is to convert Tennessee obstetricians into defense counsel, advising their patients as clients on how to avoid becoming a witness in a criminal prosecution of their abortionist.
Given the already abysmal level of accuracy in prenatal testing’s administration–in terms of sufficient informed consent, understanding of what is tested for and the test results, and an accurate, balanced portrayal of the tested-for condition and available supporting resources–fostering outright concealment and dishonesty likely will not result in an improvement in how Down syndrome prenatal testing is administered.
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