The Sixth Circuit en banc decision upholding the constitutionality of Ohio’s law on Down syndrome abortions is 111 pages long–57 of which are the dissenting opinions. As with the majority and concurring opinions, I’ll do my best to summarize them.
As you can see from the grid above, almost all dissenting judges joined the other dissenting opinions–Judges Moore’s and White’s opinions are the only ones that lack unanimity. Plus, unlike those who joined the majority opinion, every dissenting judge, with the exception of Judge Stranch, wrote their own dissenting opinion to explain why they objected to the majority opinion. So, let’s get to reviewing the six dissenting opinions.
Judge Cole’s dissenting opinion
Judge R. Guy Cole dissented for a reason not briefed by any party before the court. Because the crux of Ohio’s law is that in some way an expectant mother shares with her abortion provider that she is seeking an abortion because of a prenatal test for Down syndrome, Judge Cole argues that Ohio’s law is an unconstitutional ban on freedom of speech. Judge Cole offers one of the most catchy “soundbites” from the entire opinion:
In its haste to reconcile the law with a woman’s right to an abortion, the majority turns H.B. 214 into a don’t ask, don’t tell law.
However, the majority noted that no party made this argument in their briefs or arguments before the Court and therefore it was improper for the Court to rule sua sponte on Judge Cole’s novel First Amendment objection.
Judge Moore’s dissenting opinion
Judge Karen Nelson Moore clerked for Justice Henry Blackman at the time Justice Blackman was the lead author of Roe v. Wade. Not surprisingly, she believes the Ohio Down syndrome abortion law is unconstitutional. Her dissent is focused on the reasoning used by the majority and concurring opinions, which she describes as “self-devouring and logically untenable.”
Judge Moore analyzes the majority and concurring opinions’ election to use language from a Justice Roberts’ concurrence in an abortion case (June Medical), which she says is dicta and, then, notes the double standard of the majority and concurrences, which condemn reliance on dicta. “Dicta,” is language in an opinion that is not precedential, i.e. does not express the rule or holding of the case. This is how, according to her, the majority’s reasoning is “self-devouring” as it is based on the very premise–dicta–that those in the majority say is not controlling.
Instead, Judge Moore’s analysis concludes that the case that sets the currently controlling standard for evaluating abortion restrictions is Whole Woman’s Health. That case’s standard is a balancing test. But, she also says the Ohio statute would be unconstitutional under the tests in the June Medical plurality and under Gonzalez. How and why, Judge Moore’s dissenting opinion does not explain.
Ultimately, Judge Moore flatly says:
The language of the majority and some of the concurrences betrays the elephant in the courtroom: some members of the judiciary do not believe that the right to abortion should exist.
Judge Moore cites to the opinions of Judges Batchelder, Bush, and Sutton as supporting this broadside.
Judge Clay dissenting opinion
Judge Eric Clay, a Clinton appointee, writes his dissenting opinion to “reiterate some of the points made in my EMW dissent.”
EMW was a panel decision, i.e. a three-judge decision, in the Sixth Circuit that the majority has cited as stating the law of the circuit regarding how to consider abortion cases. Judge Clay argues that EMW incorrectly overrules the Supreme Court balancing test of Whole Woman’s Health.
The test in Whole Woman’s Health requires courts to balance the “burdens a law imposes on abortion access together with the benefits those laws confer.” However, Judge Cole says that the panel majority in EMW interpreted Chief Justice Robert’s dicta in June Medical as overruling Whole Woman’s Health‘s balancing test, which Judge Cole is correct cannot be done by a Circuit Court, which are bound by controlling Supreme Court precedence.
Like Judge Moore, Judge Clay flatly states:
Hiding in the shadows of this case is the fact that a majority of this Court believes that there is no constitutional right to abortion access.
Judge Clay does not explain why Whole Woman’s Health‘s balancing test would result in Ohio’s law being unconstitutional. Instead, he refers to the dissenting opinion of Judge Donald’s for that analysis. Unfortunately, for reading purposes, Judge Donald’s comes last in the order of opinions, and so, Judge Moore’s and Judge Clay’s arguments that Whole Woman’s Health is the test to be used instead of the EMW/June Medical test used by the majority may be forgotten by the time we get to Judge Donald.
Judge Gibbons’ dissenting opinion
Judge Julia Smith Gibbons was appointed by President George W. Bush. She and Judge White are the only judges to “cross party lines,” so to speak, with how the abortion issue typically breaks down on partisan lines. She writes specifically to counter Judge Griffin’s concurring opinion, which argued that Ohio’s law is an anti-eugenics law, which Supreme Court jurisprudence has not addressed.
Judge Gibbons focuses on the eugenic laws passed in the United States that permitted forced sterilizations of those deemed “unfit” for reproducing. The Supreme Court upheld these laws in the abominable Buck v. Bell decision. Judge Gibbons says
Eugenics certainly lives on, as my colleague argues, but not in a woman’s decisions about her reproductive health. The shadow of the eugenics movement materializes when the state wrests those decisions from her.
Judge Gibbons believe Ohio’s Down syndrome law does just that–keeping a woman from having access to abortion for a reason of her choosing–and, therefore she dissents.
Judge White’s dissenting opinion
Judge Helene White, another Bush 43 appointee, writes the shortest opinion: just three sentences. She agrees with the critique of the majority’s reasoning, and hence dissents. But, Judge White states:
And I do not attribute beliefs or opinions to the authors that are not expressly stated or necessarily implied.
This is Judge White’s diplomatic put down of Judge Moore and Clay accusing the majority authors of simply being against a right to abortion, something never stated anywhere in the 50+ pages of majority and concurrence opinions.
Judge Donald’s dissenting opinion
Judge Bernice Bouie Donald is an Obama appointee, one of only two on the entire Sixth Circuit. (For comparison, Bush 43, the only other re-elected president with nominees on the court, has five. More surprising, Trump has the most of any administration: six!).
The plaintiffs, who were abortion providers, argued Ohio’s law was unconstitutional for two alternative reasons: [1] it banned pre-viable abortions and therefore is unconstitutional per se; and, [2] it imposes an undue burden. Judge Donald agreed with both arguments.
Regarding a pre-viable ban, the majority opinion argued that Ohio’s law was not a ban at all. Judge Donald disagrees and repeatedly says that the Ohio law is “a pre-viability ban.” As such, it is unconstitutional. Her argument is helped by Ohio’s own statements in defense of its law. In briefing before the Court, Ohio describes the law a “bar [on a] small subset of previability abortions” and “prohibit[ing] an abortion provider from performing an abortion” if the reason for it is Down syndrome. She cites several more instances in Ohio’s briefs of describing the law as a “prohibition”. And, she references statements in support when the law was a bill making its way through the legislature by elected officials saying the law would “prohibit” Down syndrome abortions “ending discriminatory abortions based off a Down [s]yndrome diagnosis”.
Turning to the balancing test, Judge Donald finds that criminalizing the doctor’s conduct does pose an undue burden as it has the effect of placing a substantial obstacle in the path of a woman seeking an abortion, citing Casey and another Supreme Court case, Stenberg v. Carhart. Judge Donald notes that Ohio’s legal definition of “knowledge” includes whether “the person is aware that the person’s conduct will probably cause a certain result”. She expects doctor’s who know the expectant mother has a Down syndrome test result, even if the woman hasn’t said explicitly that is why she is seeking an abortion, will fear prosecution, citing to statements of one of the abortion providers’ executive director.
Judge Donald further finds an undue burden based on Ohio’s recognition of the importance of an open and honest patient-doctor relationship. The law’s incentive for expectant mother’s to conceal and dissuade a physician from asking the reason for the abortion is a burden on that patient-physician relationship.
Having found a burden, under the balancing test, Judge Donald turns to Ohio’s three stated interests for the law: [1] preventing discrimination against those with Down syndrome; [2] safeguarding the integrity of the medical profession; and [3] protecting the Down syndrome community and its civic voice. She disagrees with the majority’s finding that these interests overcome any burden. (Which seems an admission that the majority did apply a balancing test contra Moore and Clay’s dissents).
Regarding preventing discrimination, Judge Donald agrees with statements of some amicus curiae briefs that note, by singling out Down syndrome from other conditions often selected against by abortion, e.g. spina bifida, the law, itself, discriminates against Down syndrome.
The majority noted evidence of coerced abortions through improper counseling by physicians. Judge Donald does not disagree that this should be prevented; she disagrees though that this law is the way to address it. Instead, she believes the solution should be “assuring the public availability of unbiased information”. However, she does not cite to the fact that Ohio has a Down Syndrome Information Law already.
Judge Donald, like Judge Gibbons, disagrees with the stated “anti-eugenic” effect and purpose of Ohio’s law. She argues that historical eugenics concerned state actions and was a societal movement, not individual reproductive choice decisions, and that distinction is why this law has no tie to the eugenics movement.
Having found that the law imposes an undue burden and further finding the stated state interests do not overcome that burden, Judge Donald “vigorously dissent[s].”
Having now summarized the entire opinion, the fourth and final post will be my analysis of it, what can be expected should the Supreme Court grant review, and what effect that ruling could have.
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