The Volokh Conspiracy

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6th Cir. Upholds Ban on Doctors Performing Abortions Knowing the Reason Is Down Syndrome

The 9-7 en banc ruling appears to rest on the ban applying on to doctors who know the woman's reason; women could apparently still get such abortions if they don't disclose the reason.


The opinion is Preterm Cleveland v. McCloud, just handed down today; I haven't read all 111 pages yet, but here's what seems to be the core of the majority's opinion:

Ultimately, the question is whether these burdens will have the effect of precluding a woman from choosing or obtaining an abortion. The evidence demonstrates that they will not….

In the plaintiffs' proffered evidence, Chrisse France, Preterm-Cleveland's Executive Director, states via affidavit that Preterm-Cleveland "will have no choice" but to refuse to provide abortions to women who have reason to believe their child has Down syndrome. She does not explain, however, why Preterm-Cleveland would not be able to provide abortions to such women if the doctor were unaware of their specific motive….

None of the plaintiffs' declarants, however, says that the doctor would be unable to perform an abortion if the doctor were unaware that the woman has this motive…. [W]omen affected by H.B. 214 could still obtain abortions simply by not disclosing this motive to that specific doctor … [Plaintiff's] declarants claim they would advise such women to seek an abortion in another state, but none explains why the provider would not be able to refer such women to another doctor in Ohio who would be unaware of the woman's motive. There is at this point no basis to conclude that the plaintiffs are likely to succeed in showing that H.B. 214 will impose an undue burden.