Preterm-Cleveland v. McCloud, No. 18-3329 (6th Cir. 2021)
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Ohio H.B. 214, signed into law in 2017, prohibits any person from purposefully performing or inducing or attempting to perform or induce an abortion if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of a test result indicating or a prenatal diagnosis of Down Syndrome in an unborn child or “any other reason to believe” that an unborn child has Down Syndrome, Ohio Rev. Code 2919.10(B). Violations constitute fourth-degree felonies. The law requires the state medical board to revoke the license of a physician who violates it and makes that physician liable for damages. The performing physician must attest in writing that he is not aware that fetal Down Syndrome is a reason for the woman’s decision to terminate.
The Sixth Circuit initially affirmed the entry of a preliminary injunction but, on rehearing, en banc, reversed, reasoning that the restrictions imposed, or burdens created, by H.B. 214 do not create a substantial obstacle to a woman’s ability to choose or obtain an abortion. The restrictions are reasonably related to, and further, Ohio’s legitimate interests. The right to an abortion, even before viability, is not absolute. The “right” actually implicated or affected here is not the woman’s right merely to obtain an abortion; the court focused on the doctor’s “knowing” participation in the Down-syndrome stigmatic decision-making.
This opinion or order relates to an opinion or order originally issued on October 11, 2019.
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