A previous post covered the Sixth Circuit Court of Appeals decision on Ohio’s “Down syndrome Abortion Ban” law that I expect will lead to Supreme Court review. In this post, I cover the four concurring opinions, several of which offer novel theories beyond abortion precedence for evaluating these laws.
With appellate courts, the majority opinion is what sets the law for that jurisdiction. But, often, judges who agree with the majority opinion will also file what is called a “concurring opinion.” In these concurring opinions, the judge(s) will offer a point that may not have garnered enough votes to be in the majority, but what he or she feels is worth adding to the general knowledge. Often, the point of a concurring opinion is to act as a first step of trying to convince a majority of the appellate court, or even a higher reviewing court, to go along with the concurring opinion’s point.
In the Sixth Circuit en banc decision on Ohio’s law criminalizing a physician performing an abortion if he or she knows the reason for the abortion is a Down syndrome test result, there were five concurring opinions. One was within the majority opinion itself. Sections V-B & D, & VI of the majority opinion fell short of getting a majority of judges to sign onto it. Because I covered the majority opinion already, I’ll leave it to the reader to read those subsections if interested. Instead, this post focuses on the four concurring opinions (beginning at page 31 at the link) separate from the majority opinion.
Judge Sutton’s Concurring Opinion
As the matrix at the top lists, Judge Jeffrey Sutton was a Bush 43 appointee, i.e. appointed during the “aughts” of this century. Judge Sutton joined both the majority opinion and the three subsections that did not get a majority to join. The point of his concurrence is more of a macro-level critique of the judiciary’s role in abortion regulation in the United States:
Today’s case, it seems to me, is Exhibit A in a proof that federal judicial authority over the issue [abortion] has not been good for the federal courts or for the increased stability over this difficult area of law. How did it happen that an anti-eugenics law is not the kind of law that reasonable people could compromise over in the context of broader debates about abortion policy?
The next paragraph, however, introduces a thought picked up on by other concurring opinions:
For my part, I do not find this case difficult as a matter of federal constitutional law. The United States Supreme Court has never considered an anti-eugenics statute before. Nothing in its abortion decisions indicates that a State may not ban doctors from knowingly performing an abortion premised on the undesirability of the disability, sex, or race of the fetus. The question is not whether the ban counts as an undue burden. The question is whether the undue burden test applies at all. I see no reason that it does.
* * *
Ohio is free to reject the policy approach of some European countries to the issue. … Ohio does not have to be Iceland.
Judge Sutton shares an oft-overlooked part of Planned Parenthood v. Casey, essentially the revision of Roe v. Wade that allowed some restrictions on abortion if they didn’t pose an “undue burden.” But, as Judge Sutton points out, there was an analogous restriction to Ohio’s Down syndrome law that was not even challenged:
The Pennsylvania law at issue in Casey, notably, included an anti-eugenics provision, one that banned abortions on sex selection. .. The sex selection provision in Casey went unchallenged … . The Supreme Court’s silence on the matter means that the Court has never rendered States “powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
Suggesting further why I believe the Supreme Court will grant review now that there is a split in the circuits, that last quote Judge Sutton took from the dissenting opinion opposing the Seventh Circuit’s ruling that Indiana’s Down syndrome abortion law was unconstitutional. Then, immediately after, he ends this section quoting Justice Thomas’s concurrence denying review of the Seventh Circuit decision, where Justice Thomas said that the validity of a law like Ohio’s “remains an open question.”
Judge Griffin’s concurrence
Judge Griffin, another Bush 43 appointee, wrote a separate opinion “to emphasize Ohio’s compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics.”
Judge Griffin covers the embrace of eugenics during the progressive era at the turn of the last century which metastasized to its logical end of the Holocaust in Nazi Germany. As I have argued here, Judge Griffin as well argues that the practice of selective abortion for Down syndrome and other characteristics are the modern-day version of eugenics.
Judge Griffin points out that “Ohio’s anti-eugenicist goals align with our now-enlightened national policy of protecting and respecting people with disabilities” citing the American with Disabilities Act (ADA) and the Individuals with Disabilities Education Improvement Act (IDEA).
The concurrence ends by quoting Justice Thomas’s concurrence as well as his fellow Sixth Circuit Judge, Judge Batchelder, but her dissent in the three-judge review of Ohio’s law:
As Justice Thomas stated in Box, “[w]hatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions.” “I would apply that reasoning here to uphold Ohio H.B. 214.” (Batchelder, J. dissenting).
Judges Sutton, Gibson, and Batchelder (who wrote the majority en banc decision) all conclude that governing Supreme Court precedence does not prohibit the banning of eugenic abortions and, hence, they believe Ohio’s Down syndrome abortion law therefore is not unconstitutional.
Judge Bush’s concurrence
Judge John K. Bush was not a Bush 43 appointee, despite the common surname. Rather, Judge Bush was nominated by former President Trump. Judge Bush hails from my hometown, where he was the chair of the local Federalist Society. I did not have any litigation where he was involved, but we would cross paths at certain events, though I doubt he recalls meeting me.
Judge Bush goes even more fundamental in his analysis than the majority, which applies Casey et al. in analyzing the constitutionality of Ohio’s law, or the prior two concurrences. Like Judge Sutton (and Justice Thomas and Judge Batchelder in her dissent), Judge Bush does not believe the existing abortion caselaw had even addressed abortion laws aimed at preventing discrimination. “When no holding of the Supreme Court can decide a question, as in the case before us, our duty to ‘interpret the Constitution in light of its text, structure, and original understanding’ takes precedence.”
With Supreme Court jurisprudence finding Roe‘s right to abortion in the 14th Amendment. The woman’s interest in reproductive choice and the state’s interest in unborn life typically are analyzed as being embodied in that Amendment’s due process clause. Judge Bush turns his analysis to the clause most associated with an Amendment passed in the wake of the Civil War: the equal protection clause.
Since the Fourteenth Amendment enshrined equality as a fundamental constitutional value, our society has made an affirmative commitment to eradicating discrimination. And the Supreme Court has recognized that such antidiscrimination laws serve “compelling state interests of the highest order.” A law passed to end the “odious view that some lives are worth more than others” and ensure that people with Down syndrome are not eliminated in America, as they nearly have been in other countries, would fit squarely within that venerable tradition.
(citations omitted).
Judge Bush then turns his analysis of Ohio’s law to the tests Supreme Court cases have established for 14th Amendment issues. First, courts are to determine if a right is deeply rooted in the United States’ history and tradition. While noting the forced sterilizations of the “feeble-minded” during the eugenics of the 1900’s, Judge Bush notes that, instead, given the number of antidiscrimination statutes at both the federal and state level, that the “right” to a eugenic abortion is not one deeply rooted in the United States’ history or tradition.
Then, Judge Bush turns to the next test of whether Ohio’s law is “narrowly tailored to serve a compelling interest.” Eradicating discrimination is a compelling interest. He also finds the law narrowly tailored. The Sixth Circuit had previously ruled that “a total prohibition on discrimination ‘is itself the least restrictive way to further EEOC’s interest in eradicating discrimination based on sex stereotypes from the workplace.” Similarly, “[a] prohibition on eugenic abortions would be the least restrictive way to further states’ compelling interest in eradicating them.”
Passing both tests, Judge Bush concludes with the role of elected officials to express the will of the people and for courts to interpret those laws. After citing those who argue for women to abort pregnancies positive for Down syndrome, Judge Bush balances that position with the number of studies, citing specifically to one by Dr. Brian Skotko written about here, that show people with Down syndrome value their lives and their loved ones do, too. He concludes, “The people of Ohio are entitled to enact into law their considered judgment that those with Down syndrome are worth protecting.”
If the Supreme Court grants review, and Justice Thomas’ view that existing abortion caselaw does not address Ohio’s antidiscrimination law, I expect Judge Bush is hoping his concurrence serves as a first draft for a Supreme Court opinion.
Judge Kethledge’s concurrence
Judge Kethledge, another Bush 43 appointee, wrote the concurring opinion that had the most other judges join besides the majority opinion. But it is the shortest of the concurrences, being just one paragraph. Judge Kethledge explains why he (and presumably the three other judges who joined his opinion) did not join in the three subparts of the majority opinion, finding them either duplicative of other parts or what is called “dictum,” i.e. non-controlling language. But his succinct concluding sentence again suggests why the Supreme Court will review these laws:
Finally, I respectfully disagree with the Seventh Circuit’s decision in Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health, simply because the statute there, like the one here, was not a ban on abortion.
In the third post of this series on the Sixth Circuit decision, we’ll address the Dissents, which, as dissents, disagree with Judge Kethledge’s conclusion and the other arguments summarized in the first and this second post.
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