En Banc Sixth Circuit to Consider Ohio Down Syndrome Abortion Ban

Ohio prohibits doctors from performing abortions if Down Syndrome is the reason. Does such a law impose an "undue burden" on the abortion right?


On Friday, the U.S. Court of Appeals for the Sixth Circuit granted the Ohio Attorney General's petition for rehearing en banc in Pre-Term Cleveland v. Himes, in which a divided panel upheld a district court's preliminary injunction against an Ohio law prohibiting doctors from performing an abortion if the doctor has knowledge that the reason for the abortion is that the unborn child has (or is likely to have) Down Syndrome.

This case presents two questions that involve interesting twists on arguments over the constitutionality of state-level restrictions on abortion. The first is whether the state's purported justification for the ban—a prohibition on disability-based discrimination—is a sufficiently strong state interest to justify limitations on abortion that cannot be justified by other interests (such as the state's interest in unborn life or the health of the mother) that were considered in Casey.  The second is whether a prohibition on performing an abortion for a specified reason, such as a Down Syndrome diagnosis, imposes an "undue burden" on the abortion right.

The answers to these questions will certainly affect the extent to which states may limit abortion. For instance, if the assertion of state interests not considered by the Supreme Court in Casey allows for the imposition of abortion restrictions beyond those contemplated in Casey (and subsequent cases), then anti-abortion states will be encouraged to identify additional such interests to justify additional abortion limits (as well as to enact laws that parallel the Ohio statute).

The first question calls upon the court to (re)consider the meaning of Casey.  Is the "undue burden" standard an absolute, across-the-board standard for the evaluation of abortion restrictions? Or is the "undue burden" standard merely the test to be applied to abortion restrictions adopted for the purposes of protecting unborn life? Put another way, if a state can identify another interest that is sufficiently compelling, does this mean it can impose restrictions on pre-viability abortion that would otherwise constitute an "undue burden"? (Indeed, if the interest is sufficiently compelling, then perhaps any burden imposed would not be "undue" in relation that interest.)

Even if the Sixth Circuit does not accept the argument that state interests not considered in Casey may justify additional limits on abortion, there is another interesting question about how to conceive of a prohibition on performing abortions for specified reasons prior to viability. On the one hand, the Supreme Court in Gonzales v. Carhart held that the prohibition of one particular method of abortion did not constitute an "undue burden" on the abortion right, in part because the law left other abortion methods available. On the other hand, for a woman seeking to terminate a pregnancy because of a Down Syndrome diagnosis, the Ohio law would seem to impose a complete prohibition on this woman's ability to obtain an abortion, even prior to viability. Such a "ban" would seem hard to square with even a highly constrained interpretation of Casey, and thus would likely be deemed unconstitutional. (It is true that in such cases a woman could seek an abortion without telling the abortion provider of the reasons why—or perhaps even lying about it—but I do not think that possibility is likely to play a large role in the analysis.)

Depending on how this case is resolved in the Sixth Circuit, these issues could end up in the Supreme Court—but perhaps not as quickly as one would think. How quickly may depend, in part, on what the Court decides in June Medical Services v. Gee, another abortion which the Court is hearing this term and is likely to decide in late June. (Indeed, I would not be surprised if the Sixth Circuit waits to issue a decision Pre-term until June Medical is decided.)

This past Spring the Supreme Court denied certiorari in a case concerning an Indiana law that also prohibits abortion due to Down Syndrome (among other characteristics). If the Sixth Circuit panel's decision is upheld en banc, Ohio will certainly seek certiorari, but in the absence of a circuit split it's anyone's guess whether four justices on the current Court would want to take the case. (Justice Thomas wrote separately, but only for himself, arguing that Indiana's law advanced its "compelling interest in preventing abortion from becoming a tool of modern-day eugenics," an argument echoed by the State of Ohio).

If Ohio prevails before the en banc court, however, we will have a circuit split between the Sixth and Seventh Circuits over the constitutionality of these sorts of abortion restrictions. This would present abortion rights advocates with a difficult choice. Given the circuit split, a petition for certiorari would very likely be granted, but it would also present the Supreme Court with an opportunity to narrow or alter Casey in significant ways. Were such a petition not filed, not only would the law remain in force in Ohio, but equivalent laws would likely be adopted in additional states, and anti-abortion states would almost certainly seek certiorari were any of those laws to be struck down in other circuits.

One other possibility to consider is that the en banc Sixth Circuit could rule against the district court's injunction without fully deciding whether the Ohio law is constitutional under Casey. Because of the procedural posture of the case, some judges might conclude that the district court (and the panel) applied the wrong analysis in enjoining the law, which would justify a remand to the district court for further consideration. For example, some judges might conclude that Casey does not preclude states from asserting interests other than that of unborn life or the health of the mother to justify restrictions on abortion, and therefore the district court needs to decide, in the first interest, whether the Ohio has asserted a compelling interest and whether this law is narrowly tailored advance that interest. Such a decision might be seen as ducking the issue, to be sure, but this would hardly be the first case in which judges sought to avoid deciding more than necessary in an abortion case.

NEXT: Retroactive Continuity (Retcon) in the Law

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  1. Yeah, not that big a fan of it but if abortion is so great I don’t really see why have Down Syndrome gives the fetus a shield of immunity but you can abort a perfectly healthy baby for purely financial or other reasons.

    1. Because it represents discrimination against the disabled.
      Really, what this case leads into are the gender-based and race-based abortion laws.

  2. I think the 6th Circuit should pass. It is for the Supreme Court, not inferior federal courts, to reinterpret Casey. The case is going to reach the Supreme Court anyway. And it’s unlikely the Supreme Court will benefit from the 6th Circuit’s en banc opinion. We are dealing entirely in judge-made law. There is no underlying legal principle to interpret. What’s at stake is entirely a matter of policy opinion, and not law in the usual sense of interpreting an external authority at all. There is no external authority involved.

    Either a majority of the Supreme Court will think considerations like Ohio’s justify abortion restrictions, or it won’t. Whether a majority of the en bank 6th Circuit thinks so or not is unlikely to have any effect on it whatsoever.

  3. If you love Down-syndrome patients, and object to the reduction in their numbers by prenatal testing and selective abortion, then I have some GOOD NEWS for you!

    Thanks to advances in biotechnology, we will soon be able to genetically engineer human zygotes with trisomy-21, the condition which causes Down syndrome. You will be able to implant these zygotes into your own uterus (or, if you are male, into your wife’s or girlfriend’s uterus) and have as many children with Down syndrome as you wish to have.

    We will also be able to genetically engineer zygotes with sickle-cell anemia, cystic fibrosis, Gaucher’s disease, Wilson’s disease, alpha- and beta- thalassemia, Duchenne muscular dystrophy, and maybe even Prader-Willi syndrome. You will be able to have children with whatever genetic diseases you want them to have. Including, if you like, RRM2B-related MDDS, which is what little Charlie Gard had.


    1. Of course people don’t want that. But people also react in horror to the idea such lives are not worth living.

    2. Are you disingenuous or stupid?

      “Please don’t kill people with this particular problem” does not mean that you want more people to have that problem.

  4. As someone who is squeamish about abortion for these disease-related reasons . . . I still am horrified at the prospect of the following situations.
    Doctor, to patient and husband: “You have just found out that your expected baby will have Down Syndrome. This is terrible news and I will support whatever decisions you make in regards to your pregnancy. But I have some critical information, and are you both ready to hear it now? Yes? Okay. The Republicans in this state have passed a law that says that a woman will not be permitted to have an abortion IF IF IF the reason for the abortion is that the child will have Down Syndrome. So, after you and your husband have a chance to talk about this, think about this, etc., I hope we can have another talk. If you tell me that want to carry your child to term, then that is just fine. If you tell me that you want to have an abortion FOR ANY REASON that is unrelated to Down Syndrome, then that is just fine. If you tell me that you want to have an abortion, but you do not want to share the reason for the abortion, then THAT also is just fine. But if you were to tell me that you want the abortion due to Down Syndrome, then I will not be permitted to perform that abortion. Did you both understand what I just told you?”

    “You just found out that your child will have Down Syndrome and you have told me that you and your wife want an abortion due to this new news. I need to tell you two things. 1. The Republicans in this state have passed a law that takes away your right to have an abortion in this situation–where you have told your doctor that your reason for the abortion is related to Down Syndrome. 2. BUT…if you were to go to a NEW doctor and you were to give that doctor ANY OTHER reason for an abortion, then that would be fine and completely legal. In fact, I often refer my patients to Dr. Smith, whose office is across the street. And she often refers patients to me. She and I share no information at all about patients. So, any patient of mine who decided to see Dr. Smith could tell her any reason for an abortion and Dr. Smith would then be legally permitted to help you with your medical needs.”

    I find the concept of a state forcing its way between a doctor and her patients pretty abhorrent. But the above situations will happen again and again, if this law is allowed to stand. (And then, of course, the state–or anti-choice groups–will certainly conduct sting operations, to catch these types of doctors. An ugly situation all round.

    1. “The people of this state have passed”, you mean.

      Vox populi for thee but not for me.

    2. We already have converstations of this sort:

      “You just realized that the pregnancy is going to make it hard to afford your annual vacation in the Caribbean, and even if you bring the baby your wife isn’t going to look good in a bikini, so you want an abortion at 5 months. I need to tell you something: Per state law, already ruled constitutional, elective abortions are not available at that point in the pregnancy.

      However, you can have an abortion at any point up to the baby, excuse me, fetal mass, exiting the birth canal, so long as it’s for health reasons, including mental health. So if you really want this, I’m going to have to ask you to step back out into the lobby, come back in, and tell me that you’re suddenly horrified at the idea of becoming a mother, and giving live birth might make you suicidal.

      Then we can schedule this thing.”

      1. The thing is, that’s actually a Goebbels level lie by pro-lifers.

        You see, despite 45 years of data, pro-lifers have never identified a single ACTUAL abortion where a health exception was truly abused and a late term abortion was allowed when there was no health threat. This actually doesn’t happen.

        But pro-lifers, despite purporting to believe in a God who prohibits lying, are some of the biggest liars on the planet.

        1. Here’s an interesting interview for you….


          1. That interview, which I just skimmed, encapsulated phase about the “banality of evil.”

          2. “My sister had an abortion before it was legal, and it never occurred to me that there was anything morally wrong with what she did.”

            Sums up the entire article perfectly. She has no soul.

            She points out all these legitimate medical arguments about how women might not know they’re pregnant. She’s 100% correct and I don’t dispute facts with her. But what’s really fucked up is how she jumps from “I didn’t plan for this pregnancy” to “it’s okay to murder my child.” Everything she justified was based on ease and convenience. I don’t “think” I can handle it. Yeah, fuck you. You don’t get to kill someone on hypotheticals. The fact that it’s emotionally draining doesn’t make your decision correct. It should be difficult for you; that’s your conscience begging you not to become a child killer.

        2. Riiiight. And Planned Parenthood wasn’t feeding Kermit Gosnell patients, either.

          You’re the one pushing the big lie, Dilan.

          1. What does that have to do with abusing health exceptions, which is the dishonest pro-life talking point?

        3. Despite years of data, the pro-choicers have never identified a single actual case where an abortion is necessary to save the life of the mother. This is just a Goebels level lie that is used to promote legal abortion.

          1. pro-choicers have never identified a single actual case where an abortion is necessary to save the life of the mother

            What are you smoking?

            1. There are rare cases where procedures necessary to save the mother’s life will either risk, or have the inevitable side effect of, ending the pregnancy and losing the fetus’ life. Those procedures are not abortions, though. For example, treatment of an ectopic pregnancy is much different than an abortion.

              1. This is why, for example, Dr. Don Sloan, an abortionist who had performed over 20,000 abortions, wrote in 2002:

                “If a woman with a serious illness- heart disease, say, or diabetes- gets pregnant, the abortion procedure may be as dangerous for her as going through pregnancy … with diseases like lupus, multiple sclerosis, even breast cancer, the chance that pregnancy will make the disease worse is no greater that the chance that the disease will either stay the same or improve. And medical technology has advanced to a point where even women with diabetes and kidney disease can be seen through a pregnancy safely by a doctor who knows what he’s doing. We’ve come a long way since my mother’s time….The idea of abortion to save the mothers’ life is something that people cling to because it sounds noble and pure- but medically speaking, it probably doesn’t exist. It’s a real stretch of our thinking.”

              2. First, your definition of abortion is not in keeping with everyone’s. Take that ectopic pregnancy implantation bill, for instance.

                But more importantly: Pregnancy carries with it increased risk of death, right? Cardiovascular disease, hemorrhage, hypertension, infections…

                Ending the pregnancy ends those risks.

                Ergo, you’re wrong. And so is whoever you dug up.

                1. “First, your definition of abortion is not in keeping with everyone’s.”

                  Yes — pro-abortion advocates’ response to the point I am making here is to argue over words, rather than address the actual scientific and medical distinction.

                  “But more importantly: Pregnancy carries with it increased risk of death, right? . . . Ending the pregnancy ends those risks.”

                  Exactly right — the consistent position of every abortion advocate is that every single abortion can be considered “medically necessary,” so that the exception swallows the rule and the entire idea of this exception is farce. But, this is based on a false premise that abortion is safer than birth, which it’s not (and note abortion does not avoid pregnancy, it only terminates it sooner.)

                  1. I’m not sure if you don’t understand how risks work, or what necessary means, but you’ve got something fundamental wrong with you.

                    Also, even assuming that the pro choice (not abortion advocates, you chucklehead) position is indeed that every abortion is medically necessary, that doesn’t make your initial statement that no abortions are medically necessary any less crazy.

                    And my noting that you are curating your own definitions outside the general debate isn’t ignoring your points, it’s trying to get you on track with the reality of your movement, which is pretty out there with what it considers abortion.

                    1. You’re simply ignorant and mistaken. Check WebMD and Mayo Clinic and see how they describe treatment of an ecoptic pregnancy. Now for the kicker, take a look at what Planned Parenthood says:


                      “Treating an ectopic pregnancy isn’t the same thing as getting an abortion.”

                      You have to really dig deep to find the extreme pro-abortion zealots who will say that treatment of an ecoptic pregnancy is an abortion!

                    2. Do you think I’m arguing that ectopic pregnancy treatment is abortion?

                      I agree with Planned Parenthood on this. But a bunch of pro life folks do not. Hence that bill in Ohio.
                      See also the pro life position on IVF and IUDs.

                    3. There’s no instance where an abortion is performed or necessary to save the life of the mother. There are other, different procedures that may result in loss of the fetus’ life.

                      Meanwhile, abortion advocates (not mainstream “pro-choice” people) consistently take the position (which you just argued yourself) that ALL abortions can be considered necessary for the life or “health” of the mother.

                    4. So now you’ve defined out all pregnancy terminations that are needed to save the life of the mother as not abortions? So if a mother has a level of hypertension where it’s her kidney’s or the fetus, that’s not an abortion that’s some other thing?

                      Do you see how that’s not consistent with your reasoning for why abortion is bad?

                2. “But more importantly: Pregnancy carries with it increased risk of death, right? Cardiovascular disease, hemorrhage, hypertension, infections…

                  Ending the pregnancy ends those risks.”

                  Let’s talk actual medical science here. Those risks are very low, and to the extent they exist, are often exacerbating underlying health conditions. Maternal mortality is strongly, but not completely, associated with obesity, drug use, anaemia, lack of prenatal care, pre-existing hypertension or diabetes, a terrible diet, being very young for a pregnant woman or very old, etc.

                  To be rather blunt, if a woman is so concerned about her health that she would consider ending her child’s life to protect it, perhaps she should take better care of her body before and during her pregnancy. Seems like a better solution all around.

                  Ran a half marathon when 5 months pregnant, placed in my age group in a 5k at six months pregnant, and, with just over a month until delivery, still do plank, run/walk, and do kettlebell workouts. My blood pressure is 100/60, my blood work is stupidly perfect, and my baby is by all measures very healthy, if a bit big.

                  1. Doesn’t matter what the risks are – ML made a sweeping statement that is clearly false.

                    And congrats on your marathon – that’s badass. Says nothing about the population generally.

              3. There are rare cases where procedures necessary to save the mother’s life will either risk, or have the inevitable side effect of, ending the pregnancy and losing the fetus’ life.

                No, that is what the nonexistent invisible man in the sky tells conservative Catholic theologians, who believe a bunch of really dumb things about human sexuality.

                What medical science tells us is that sometimes you have to terminate the pregnancy to save a life, and there’s no reason to do it in a roundabout way just to satisfy a bunch of religious extremists.

                1. I note that your reaction to basic scientific and medical facts is blind hostility. Interesting.

                  1. I’m pretty hostile to pridefully taking the mantle of science into a morals debate where it does not belong.
                    And then using it to declare all who disagree with your moral stand to be anti-science and medicine.

                    That’s not what science is for, and shame on your for abusing our faith in it so.

                    1. See above. Ignorance and arrogance is not a good combination.

                    2. It’s humility, not arrogance, to recognize that these are not the questions science can answer.

                    3. Whether abortion is ever needed to save the life of the mother is one of the questions for science. Whether it’s morally right to allow the killing of human beings for mere convenience or something more is one of the questions not for science. Missing this point over and over is left to the extremely stupid.

                    4. No, ML, at your level of massive generalization it’s a question for logic, not science.

                      Unless you climb down from the idea that there’s never an abortion that’s needed for the mother’s health (or your no-true-Scottsmanning of medically necessary abortion), then science only needs to indicate whether pregnancy includes some risks that not being pregnant does not.

                2. “What medical science tells us is that sometimes you have to terminate the pregnancy to save a life, and there’s no reason to do it in a roundabout way just to satisfy a bunch of religious extremists.”

                  If a surgeon were operating on conjoined twins with the alleged goal of saving them both, but started the operation by taking a hatchet to the head of the twin on the left, everyone would know that the surgery was really about killing the twin on the left.

                  It’s not about satisfying a bunch of “religious extremists;” it’s about actually asking doctors to do what they are claiming to do. If they are claiming to try to save mother and baby, then they shouldn’t start by sticking a fork into the baby’s head and suctioning its brains out.

        4. Ah, Dilan’s usual mendacity about pro-lifers.

          How do you propose that we identify an abuse of a health exception? You’re an attorney; do you expect us to subpoena random health records? Put a physician under oath to do some snooping to figure out if he abused a health exception? Harass post-abortive women?

          You would pitch an absolute fit if we were to do that, and frankly, it wouldn’t pass constitutional muster anyway. So we’re left with people who actually admit to abusing the process or are found out later (usually through commission of an unrelated crime) to have abused this system.

      2. The mental health exception is real, and massively abused in the UK. Abortion is technically banned in the UK, with health (and mental health) exceptions.

        Somehow, 98% of abortions in the UK are for “health” reasons. Despite 25% of pregnancies in the UK resulting in abortion. (That’s over 200,000 pregnancies).

        1. That doesn’t necessarily prove abuse.

          If the UK mental health exception is narrow, than maybe it would be. But if the UK exception says something like “anything that might affect the mental well being of the patient”, then there would be no abuse.

    3. “I find the concept of a state forcing its way between a doctor and her patients pretty abhorrent.”

      The state does this all the time. Recently the Obama administration demanded that doctors due gender transitions and abortions, even if the doctors disagreed ethically with the procedures.

    4. Maybe you shouldn’t be horrified, because these sorts of conversations and behind-covering actions are the inevitable result of ALL anti-discrimination laws, even when there’s NOT a pretext covering up for an illegal reason. That sort of gets to the problem that causes some libertarian types to object to anti-discrimination laws.

      I agree with the logic though — If you can voluntarily assume the risk of pregnancy, but then kill your baby because you don’t want the responsibility of a normal child, then why wouldn’t you be able to kill your baby because you don’t want the responsibility of a DS kid? (Even where the post-birth responsibility in either case could be limited to dropping the kid off at the fire station.) That’s the sort of grotesque yet valid logic that follows if you accept the pro-choice premise. Yet a pro-life view may adopt this law somewhat cynically if it results in less abortions, or helps to expose flaws in the other side.

      1. Once you call it a baby and a child, your question begging does as intended and makes you tautologically correct and the other side into monsters.

        But of course that’s not what gets aborted.

        1. I have no problem using “fetus” and I usually do when it comes to more clinical discussion. However, that it’s baby and a child is just a fact of linguistics, descriptively speaking. Sorry you don’t like it. Funny thing is that you and your side do the same thing in referring to exceptions for the “life of the mother.”

          1. Dunno what semantic issue you have with life of the mother, but you’re wrong that baby is a linguistic choice you can make about a fetus and not have people know exactly what you’re trying to do.

  5. I’m not a big fan of abortion but I’m trying to come up with a justification ban aborting a baby with a disability, but a perfectly healthy baby would be fair game.

    A few years back when my wife became pregnant with our last child at 38, we decided decided we wouldn’t test for Downs because it wouldn’t change anything, but it not a choice I’d make for others.

    1. Yeah, from a rational standpoint, aborting is the thing that’s horrible, not who you abort.

  6. I love how, as a society, we’re actually entertaining an argument that it’s okay to murder someone for being an inconvenience. This law was ingenious in the sense that it forced abortionists to provide their reasons. They can’t just couch it in the language of women’s rights anymore; they had to explain why we should specifically accept Down Syndrome as a legitimate reason to murder. As expected, they espoused the beliefs we’ve always known they had, but that they refused to admit in public discourse. Abortion is about convenience and nothing else. Why should a woman have a right to choose? Because if she can’t choose, then she will be burdened by pregnancy. But that’s the ingenious part. All child-rearing is burdensome. It is by definition burdensome and anyone who doesn’t realize how difficult it is has either never done so themselves or has an immature view of parenthood.

    Once we establish in the mainstream that the hurdle to clear is convenience, that’s when abortionists lose. You can argue that aborting all sorts of groups is statistically convenient for society. The same terrible arguments that justify aborting due to Down Syndrome also justify aborting minorities, the poor, the non-college educated…

    1. I’m pretty sure everyone who’s aborted is non-college educated…

      1. I meant with regards to the parents, but yeah, poor wording on my part.

    2. Indeed. What we have in America today is a declaration that this particular category of living human beings are not persons, and therefore they are expendable and can be killed for reasons of convenience, comfort, financial, etc. Which category of humans will be declared expendable tomorrow?

      1. It’s been generations since the original decision. Have more humans been declared expendable since then? Or is your slippery slope argument just melodramatic bunk?

        1. I’m not focused on the slippery slope. In some ways maybe we already went down it. Can you think of any instances in history where categories of humans were considered less than persons?

          1. I can; and we got better.

            Are you thus admitting that Which category of humans will be declared expendable tomorrow? was just sophistry?

        2. Statistically, yes. Abortions in the US are around 1m per year and disproportionately affect African Americans. That’s why it is critically important to fight the culture war for both a greater respect for life and, bar restrictions on certain heinous practices, deregulation of contraceptives, abortion, adoption, and other family planning related services as much as possible so people can have sex responsibly and feel empowered to make difficult decisions.

          Believe me, the people who irritate me the most aren’t those who get abortions. I hate people who wish to ban abortions and don’t put their money where their mouth is. Make it easier for women to put children up for adoptions. Make contraceptives more accessible. Stop being afraid of sex-ed in schools. I don’t want fewer abortions because I wish to control women. I want fewer abortions because I want more people to enjoy life.

          1. But you don’t get to double dip on abortions to say they stand for enfeatused-Americans, and also blacks.

  7. “It was once said that the moral test of Government is how that Government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”

    /attributed to Sen. Hubert H. Humphrey (D-MN)

  8. Abortion is, as all rational people will agree, an unforgivably evil act.

    But this isn’t a great test case. Governments have a long history of murdering the mentally infirm. It isn’t hard to justify ruling this law unconstitutional.

    A better case would be a law prohibiting abortions based on race or gender. The latter is a weaker case, but it should be much easier to find instances of this particular injustice.

    1. Abortion is, as all rational people will agree, an unforgivably evil act.

      Super rational guy right here, no one mess with his inescapable logic!

  9. Having a hard time seeing how this law is Constitutional. If you have the right to abort merely because it is inconvenient to have a baby right now (e.g., for financial or emotional reasons), then why should the fact that Down’s syndrome is involved make a difference? Raising a Down’s syndrome baby is surely a greater burden, both financially and emotionally, than a normal baby.

    “Discrimination” strikes me as irrelevant, given the complete discretion the mother is afforded.

    Take an analogy. A person has the right to date and marry whom they wish. Certainly a fundamental right, as recognized in Loving v. Virginia and other cases. Government cannot interfere in that decision. Suppose someone says, I prefer not to date someone of a certain race or religion. Can the state ban that because of “discrimination?” I very much doubt it.

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