Split appeals court lets Ohio’s Down syndrome abortion law to be enforced

A federal appeals court ruled that Ohio can enforce a 2017 law banning doctors from performing abortions if they know the decision is because of a Down syndrome diagnoses.

While the decision came Tuesday, the law doesn’t at this time affect area pregnant women or local physicians.

If no further legal challenges happen, the law goes into effect May 5, according to is Jessie Hill, cooperating attorney for the ACLU of Ohio. Also, because women are not required — now or after the new law — to share any reason for having an abortion, it is not clear what the final impact will be.

Pregnant women face no criminal liability under the law. Under the law signed by former Gov. John Kasich in 2017, a doctor commits a crime if they perform an abortion after they are aware that the woman is seeking an abortion because of a diagnosis, or possibility of a diagnosis, of Down syndrome.

Doctors could face a fourth-degree felony charge, lose their medical license, and be held liable for legal damages.

The 6th U.S. Circuit Court of Appeals in Cincinnati, split 9 to 7, said the law survived the “undue burden test” and because it “imposes no substantial obstacle on a woman’s right to an abortion” and furthers what the court listed as three legitimate interests: protecting Down syndrome community from what the state perceives as discriminatory abortions; defending families from coercive health care practices that encourage Down syndrome-selective abortions; and “protecting the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome selective abortions.”

Reuters noted that another federal appeals court declared a similar Arkansas law unconstitutional, and the split could prompt the Supreme Court to take up the issue.

Judge Bernice Donald in a dissent called the law “the long-arm of the state — wielding the threat of a class-four felony — forcefully reaching into a profoundly intimate conversation between doctor and patient and telling the patient to be silent about her medical history or worse, purposefully lie about it.”

Following the decision, Mike Gonidakis, president of Ohio Right to Life, said the organization was “elated” with the decision.

“The eugenic practice of singling out human lives for death because of a Down syndrome diagnosis has no place in our society. This court ruling brings us one step closer to ensuring that vulnerable babies with special needs are not marked for death because of who they are,” Gonidakis said.

Kersha Deibel, president and CEO of Planned Parenthood Southwest Ohio Region, and Iris Harvey, president and CEO of Planned Parenthood of Greater Ohio, said in a joint statement that families do not need lawmakers intruding and passing judgment on their medical decisions.

“Lawmakers should focus their attention on promoting laws that strengthen the health and rights of Ohioans and their families, rather than attempting to shame people for their private medical decisions,” they stated.

This follows a series of recent legal action over state abortion laws passed over the years by the Republican-controlled Ohio General Assembly.

On April 7, a judge temporarily blocked an Ohio ban on the use of telemedicine for medication abortions as a suit challenging the law’s constitutionality proceeds. The law was set to take effect April 12.

The week prior, a same judge delayed enforcement of law requiring fetal remains from surgical abortions be cremated or buried.

Associated Press contributed to this story.

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