On Tuesday, the Sixth Circuit Court of Appeals sustained an Ohio ban on abortions determined by a positive Down Syndrome. The law in question, called HB 214, was approved by the Ohio legislature in 2018 and prohibits medical practitioners to perform abortions if they know the woman who is looking for the abortion has made its decision due to her believing or knowing that the unborn would have Down syndrome.
The legislation would also qualify a violation of the law as a felony of the fourth degree, imposing severe criminal penalties to those doctors who violated the statute, while also forcing medical boards to immediately revoke their license to practice medicine, while also making them liable to civil suits for compensation.
The law was previously blocked by a federal judge in 2018 who argued that the state law “violated the right of privacy of every woman in Ohio and it is unconstitutional on its face”, with abortion supporters arguing the measure is an evident ban on abortion, while its pro-life activists saying the legislation would save countless lives of unborn children while also fighting against eugenics.
Court deeply divided
The Court decided, in a 9-7 vote, that the legislation does not “create a substantial obstacle to a woman’s ability to chose or obtain an abortion” and ruled that the injunction that has blocked the bill since 2018 could be lifted, theoretically making the law effective in a few weeks.
Judge Alice Batchelder, who voted to sustain the ban, argued the law does not really create a burden on abortion access, as it only prohibits abortions in cases where the doctor actively knows a positive Down Syndrome diagnostic is the cause for the abortion. She further argued that if the doctor does not know the reason for the abortion, then the doctor would not be in violation o of the law and the abortion could proceed.
Judge Richard Allen Griffin said that the law was appropriate as he considered that practising abortions due to a positive diagnosis of Down Syndrome to be a eugenic act, which he considered to be the root cause of the Holocaust. Judge Batchelder also qualified the law as an “anti-eugenics” bill and that it was the kind of bill that “reasonable people could compromise over” and said that the law protects a minority community, those who have been diagnosed with Down Syndrome.
This was not the unanimous opinion of the Court, however, as almost half of the 16-member court voted to maintain the blockage of the bill in place, with Judge Julia Smith Gibbons saying the compariing this type of abortion with the eugenics movement to be “inapt” and that the truly eugenic policy was for the goverment to try to control the reprodcutive decisions on women around the country, citing historical examples of sterelization campaings conducted by eugenetist movements of the 19th century.
Opponents of the bill have condemned the decision and said they could be considering taking more steps to stop the law. If they would try to take the case to a higher federal court (or even the Supreme Court), however, remains unknown. Although, the 6-3 conservative majority in the highest court of the land might discourage them to bring the case to the court.
The tight vote margin, with a margin of only two judges, shows the partisan/ideological divisions that exist in the American court system. All of the nine judges who voted to uphold the ban on abortions were nominated by a Republican president: three by George W. Bush (Sutton, Griffin, and Kethledge), five by Donald Trump (Thapar, Bush, Larsen, Nalbandian, and Readler), and one by George H.W Bush (Batchelder).
On the other hand, six of the seven judges who voted to block the bill were nominated by Democratic presidents: with four being nominated by President Clinton (Cole, Moore, Clay, and White) and two by Obama (Donald and Stranch). Only one of the dissenting judges was nominated by a Republican president, Julia Smith Gibbons, who was nominated by President George W. Bush.
This pattern of a deeply divided court is also reflected in the Supreme Court of the United States, which usually votes in two different factions: the conservatives (composed of the 6 justices nominated by GOP presidents) and liberals (the other three judges nominated by Democrats).
Abortion remains one of the most divisive social issues in the United States and the judicial system would undoubtedly play a significant role in the way the nation decides the direction of American public policy towards abortion.