This week, the Sixth Circuit Court of Appeals lifted an injunction against an Ohio law that makes it a felony for a doctor to perform an abortion if the doctor knows or has reason to believe that a Down syndrome diagnosis, or the possibility of such a diagnosis, influenced the woman’s decision to seek an abortion.
The court ruled 9 to 7 to reverse two lower court decisions that had blocked the 2017 law from going into effect.
Anti-abortion and abortion rights advocates alike have recognized for some time that the current Supreme Court may determine whether access to abortions will continue to be a constitutionally protected right. And if the ability to obtain an abortion does remain protected by the Constitution, the court is likely to determine whether it stands only as a hollow promise which can be all but eliminated by a carefully crafted state law.
Thanks to the ruling this week by the full U.S. Court of Appeals for the Sixth Circuit, that time for the Supreme Court to make that determination may be now.
In a divided decision, the court ruled 9-7 to reverse two lower court decisions that had blocked the 2017 law from going into effect. Ohio argued that the law merely regulates doctors but does not ban abortions. The majority agreed.
In a separate, concurring opinion, Judge Richard Griffin wrote that the Ohio law “does not prevent women from undergoing abortions; rather, it prohibits state-regulated physicians from knowingly carrying out abortions for eugenic reasons.”
Whether or not you support Ohio’s law, saying that it merely regulates doctors is a bit like saying that a state law prohibits neurologists from prescribing migraine medication if a patient admits the medication alleviates their migraines, and also helps them sleep. (Please hold the hate mail, I know insomniac migraine sufferers and women who wish to obtain abortions in part based on a diagnosis of Down syndrome are not identical categories of people). The point is, this does not exactly engender a free exchange of ideas between the doctor and the patient.
This does not exactly engender a free exchange of ideas between the doctor and the patient.
Under Ohio’s law, a woman could opt not tell her doctor her reason for wanting to obtain an abortion, or outright lie to the doctor, and likely the law would not apply. In dissent, Judge Bernice Bouie Donald noted that when a law like Ohio’s law “can be justified only to the extent it asks a woman to stay silent or lie to her doctor, that law stands upon a remarkably flimsy constitutional reed.” But a thin majority of Donald’s colleagues did not agree.
This is yet another reminder that elections have consequences and that one of the greatest powers that comes along with the presidency is the ability to nominate federal judges. Former President Donald Trump nominated six members of the Sixth Circuit. While Trump’s term has ended, his influence on the federal bench will be felt for decades to come.
Speaking of judicial bodies that have been remade by Trump’s appointees: back to the Supreme Court, of which Trump appointed three of its nine members. Trump repeatedly vowed to appoint anti-abortion judges. And largely as a result, this may be the court that concludes the Constitution does not, in fact, protect a woman’s ability to obtain an abortion.
Not every decision regarding an abortion restriction is destined for the Supreme Court. Not every decision about an abortion law poses an existential threat to our current Supreme Court case laws on abortion rights, Roe v. Wade and Planned Parenthood v. Casey. But the Sixth Circuit’s decision likely does.
Roe v. Wade of 1973, one of the Supreme Court’s best-known decisions, holds that women have a constitutionally protected right to obtain an abortion. In 1992, the court upheld “essential holding” of Roe, but did away with its trimester framework and created a new framework for determining when women can obtain an abortion.
In that case, Casey, the court’s “undue burden” test was established to determine when a state law that restricts access to an abortion is unconstitutional. Specifically, in Casey, the court recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Ohio’s law prohibits doctors from performing abortions pre- or post-viability if they know or have reason to believe that a diagnosis of Down syndrome is at least one reason why the woman wants the abortion. The first reason that the Supreme Court may review the Sixth Circuit’s decision is that it appears to be at odds with the high court’s holding in Casey. Ohio’s law prohibits doctors from performing abortions pre- or post-viability if they know or have reason to believe that a diagnosis of Down syndrome is at least one reason why the woman wants the abortion. Casey says no undue burdens, undue interferences or “substantial obstacles” (choose your favorite Supreme Court language here) pre-viability. Ohio’s prohibition can be fairly read as such an obstacle. The second reason the Supreme Court may take up the issue of the constitutionality of Ohio’s law is that there is now a circuit split. This means that the Sixth Circuit has concluded that this law is constitutional while the Seventh Circuit Court of Appeals has ruled that a somewhat similar law is not. One of the Supreme Court’s main roles is to referee circuit splits. It should not be the case that the Constitution’s meaning changes depending on where you live. The Sixth Circuit’s decision came out on the same day that President Joe Biden’s administration announced that the Federal Drug Administration will temporarily allow patients to be prescribed and mailed so-called abortion pills. Again: Elections matter. If the Supreme Court agrees to hear a challenge to Ohio’s law, it will likely be this fall. That means we may not have a decision until a year from now. Until then, advocates on both sides of the debate will know that the Sixth Circuit’s decision provides a possible path for the court to overturn Roe v. Wade.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
