In Preterm-Cleveland v. McCloud, (6th Cir., April 13, 2021), the U.S. 6th Circuit Court of Appeals sitting en banc in a complicated set of fragmented opinions spanning 111 pages upheld Ohio's statute which prohibits a doctor from performing an abortion if the doctor has knowledge that the woman’s reason, in whole or part, for having the abortion is that she does not want a child with Down syndrome. The vote was 9-7.
Eight judges joined several portions of Judge Batchelder's opinion to make these portions the opinion of the court. Critical to the majority opinion was the fact that the law does not apply so long as the woman does not disclose the reason for her abortion to the doctor performing it. Indeed, according to the majority, even if the doctor performing the abortion learns of the fetal-Down-syndrome diagnosis, "knowledge of the diagnosis is not knowledge of the reason." With that understanding, the majority went on to say in part:
The right to an abortion before viability is not absolute. The “[S]tate may regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate her pregnancy.”...
H.B. 214 advances the State’s legitimate interests and will not prevent a large fraction of the women it affects from obtaining abortions. As mentioned, H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests....
The burdens here are that H.B. 214 will (1) prevent a full, open, and honest conversation with the doctor who will perform the abortion by forcing the woman to withhold this reason for the abortion and (2) require her to engage in “doctor shopping” to find a doctor who is unaware of her reason for having the abortion....
Ohio’s broad definition of knowledge does not alter the reality that the woman remains in control of who knows, and who does not know, the reason for her abortion. And the record simply does not support the notion that a large number of doctors would independently learn of the reason such that it would place a substantial obstacle in the path of most women seeking abortions.... Ohio’s knowledge requirement does not amount to an undue burden.
Only five judges joined other parts of Judge Batchelder's opinion. Four separate concurring opinions were filed, as were six separate dissenting opinions. Cincinnati Enquirer reports on the decision.
UPDATE: For additional discussion of the case, see this later posting.
