Abortion

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.

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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.

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  1. Now that everyone is required to have an electronic medical record, couldn’t the MD simply review her record — as any good surgeon (or his assistant) *should* — and see the “Down’s Syndrome” diagnosis in it?

    1. Mind reading, and the avoidance of mind reading. These are supernatural powers. Supernatural doctrines violate the Establishment Clause. Why is that so hard for the lawyer?

      1. All the homicide statutes of the US violate the Establishment Clause, 1) they include mind reading, a supernatural power; 2) they were plagiarized from the catechism Paragraph 1857. “Grave matter” refers to a violation of the Ten Commandments.

        1857 For a sin to be mortal, three conditions must together be met: “Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent.”

        1. The feminist has been 10000 times more effective at killing black people than the KKK. They orchestrated a 4000 excess murders a year, when it took 100 years for the KKK to achieve that. A third of abortions are of hapless black babies, which is triple their fraction in the population. This mass murder is beyond the wildest imagination of the most extreme KKK genocidal maniac.

          1. David, David.
            Charity forbids an insult but meds are really important for you.

        2. I wonder why Derek Chauvin’s lawyer hasn’t made a motion to dismiss based on the Establishment Clause.

          1. After all I have sweated and done here, you still don’t know? Oh, come on. Are you a lawyer, SMP?

        3. So, the devil made me do it does not satisfy the third prong.

          1. God will judge your soul after you die. God is a supernatural being. He can read minds. That is the faith of the Catholic Church. God can also predict and prevent accidents. Even in the 13th Century, the Church did not believe man could do that. Only the lawyer dumbass of today holds those beliefs.

            1. My minister brother tells me that all (including the behavior of lawyers) is the predestined will of G_d David.

            2. Thankfully, I am not Catholic. The only way God would judge my soul is if I believe It could. I do not.

    2. As I understand it, the law does not make it illegal to abort a fetus that has been diagnosed with Down’s Syndrome. It makes it illegal to do so if the doctor knows the reason for the abortion is the Down’s Syndrome diagnosis.

      If the woman does not indicate the reason for the abortion, perhaps declining to state if asked, then the doctor can’t know the reason for the abortion so the abortion would not violate the law.

      Or, if the mother says she wants an abortion “because there are too many people on the Earth already”, the doctor performing the abortion would not be violating the law.

      I imagine that doctors that perform abortions will make it a point not to ask “Why?” and the “pre visit” communications will inform the woman that

      The doctor can not perform an abortion if s/he knows it’s because of a Down’s Syndrome diagnosis of the fetus. However, the patient need not reveal the reason. Abortion of a fetus which has been diagnosed as suffering from Down’s Syndrome is not illegal for either the patient or the doctor.

      Yes, a stupid law, but fairly easily worked around.

    3. You still have to authorize the release of your electronic record from one doctor to another, so unless the same clinic that diagnosed the down syndrome is also performing the abortion he wouldn’t necessarily have access to the diagnosis

      1. Oh, really?

        My experience is that everyone BUT ME has access to my records…

        1. That’s typical. HIPAA has holes in it big enough to fly a Death Star through. The only thing it’s good for is preventing intrusive family members from getting your diagnoses. Anyone vaguely related to the medical field can almost certainly get your data.

  2. “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.”

    Wouldn’t that be “constructive” something or other?

  3. The majority’s response is that “knowledge of the diagnosis is not knowledge of the reason.” “Even in circumstances in which both the doctor and the woman know of the fetal-Down-syndrome diagnosis, for the doctor to have the actual knowledge necessary under H.B. 214, the woman must somehow reveal to that doctor her otherwise private opinion that (a) she does not want a child with Down syndrome and (b) that is why she is having the abortion.” I’m not sure this is entirely right, given Ohio law’s broad definition of “knowledge”:

    A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

    But I think the majority holds, rightly or wrongly, that this wouldn’t be satisfied by mere knowledge of the diagnosis.

    The court adds: “If the law said that a woman may not obtain an abortion because the forthcoming child would have Down syndrome, then this would be a different case. Going one step further, if the law said that a doctor may not perform an abortion because the forthcoming child would have Down syndrome, that too would be a different case. But H.B. 214 does not say either thing. “

    1. Firstly, it is odd that Ed is arguing for the plaintiffs. Secondly, do you think the court would find the law unconstitutional as applied to a woman who said she wants an abortion because the forthcoming child would have Down syndrome?

    2. Finally, this gives a perverse incentive for patients to hide important information from their doctors.

  4. Women are able to choose for themselves you know and if they choose to eliminate a child because he/she is handicapped, she should be held responsible as well.

    To not do so would be sexist!

  5. ORC 2919.101 and 3701.79 require a doctor to include in an abortion report “Written acknowledgment by the attending physician that the pregnant woman is not seeking the abortion, in whole or in part, because of [Down syndrome]”. In whole or in part. I don’t see how this can stand unless the woman has no right to abort on that basis. There can’t be a legitimate state interest in encouraging women to deceive their doctors.

    1. I really do not see how language like that would not require the doctor to ask the woman. What’s he supposed to do, read her mind?

      1. No, but if he doesn’t ask about X, he can certify that to the best of his knowledge, the woman is not seeking abortion for reason X. Your assumption is that the certification requires the doctor to report on things he does not have personal knowledge about.

        “There can’t be a legitimate state interest in encouraging women to deceive their doctors.”

        Proponents of the bill would say that the legitimate state interest is in discouraging abortions.

        1. Except this particular restriction was likely pushed not by abortion opponents, but by activists for the disabled.

          1. Like all bills, I’m sure it had many proponents. But I suspect activists for the disabled would similarly say that the legitimate state interest is in discouraging abortions of disabled fetuses. I think that’s a sufficiently legitimate state interest, don’t you?

            1. No, I don’t. In my opinion the “state” has no interest in either encouraging or discouraging abortion.

              1. “legitimate state interest” is a term of art. Are you saying you think it’s a bad idea for states to regulate abortions? Or are you saying there’s no rational basis for states to do so?

                If the citizens of state X considered abortion murder, I am not prepared to say there is no rational basis for abortion legislation, even if I think abortions should not be regulated by the state at all.

              2. The State has no interest is protecting the lives of the most vulnerable?

        2. Looked up the law:

          “(B) No person shall purposely perform or induce or attempt to perform or induce an abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of any of the following:

          (1) A test result indicating Down syndrome in an unborn child;

          (2) A prenatal diagnosis of Down syndrome in an unborn child;

          (3) Any other reason to believe that an unborn child has Down syndrome.”

          So, even knowing there was a positive test would put the abortionist on the hook. Assuming the knowledge in question is supposed to be due to that list, not the woman’s motivation. The bill is legitimately a bit ambiguous as to that. A bit of deliberate sabotage at the drafting stage? Maybe, clarity on that point wouldn’t have been difficult.

      2. One of my favorite legal terms is “ostrich instruction”. In federal law, at least, willful blindness can be as good as actual knowledge.

        A woman didn’t have an abortion soon after learning she was pregnant. When the test came back she quickly scheduled an abortion without saying why. The doctor certified that the decision was uninfluenced by the test results. The prosecutor disagreed. The jury instructions and sufficiency of the evidence are being reviewed by a judge who thinks abortion is murder. Does that judge say there is a duty to inquire?

  6. “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”

    Oh, well, that’s a relief, we can safely rejoice at this glorious prolife triumph?

  7. Sounds like the wrong plaintiffs.

    1. It might be hard to find a proper vehicle. Even if you find the right plaintiff, the capable of repetition but evading review doctrine probably wouldn’t apply.

      1. Standing looks clearer to me than than the usual abortion proxy fight. Doctors aborting fetuses with Down syndrome risk being charged with knowledge of the woman’s motive.

  8. Anyone smart enough to get through medical school is smart enough to help a patient come up with some other reason for wanting an abortion. People give pretexts to cover up their real reasons all the time. This is not that different from a racist employer who doesn’t want to hire blacks who simply comes up with a race-neutral reason for every black he doesn’t hire.

    “Yes, Your Honor, the fetus had Down Syndrome, but that’s not the reason for the abortion. The timing just wasn’t right for us to have another child right now. We are stretched financially and can’t afford another child right now. We’re having marital problems and the pregnancy wasn’t helping. Husband/wife are having psychological issues and the pregnancy wasn’t helping. Oh no, the Down Syndrome wasn’t the reason.”

    1. “This is not that different from a racist employer who doesn’t want to hire blacks who simply comes up with a race-neutral reason for every black he doesn’t hire.”

      Should race discrimination be legalized, then?

      1. No, and neither should laws against speeding, which people also routinely get away with. I’m simply pointing out that this is one of the many laws on the books that will largely be meaningless except for the occasional idiot who actually tells the truth about her reasons.

        1. OT: How did you fare with your declaratory petition regarding the title insurance matter?

          1. Deed is valid, grand daughter owns the condo, since the deed transferred the property it’s not part of any estate, so no need to involve the heirs. In other words, I got everything I asked for. Thanks for asking.

    2. That may work once…

      If a doctor has a spike in abortions right after the down syndrome test, and for abortions which all come back positive… And keep in mind, that at least 70% of abortions are done before you can even do that down syndrome test…

      Well… Once is happenstance. Twice is coincidence. Three times is enemy action.

      1. That doesn’t prove the doctor knew.

        1. Maybe constructive knowledge is enough.

          1. Even allowing that really bad policy idea, statistical proof alone is not generally enough to establish constructive knowledge, if I recall my lessons on mens rea correctly.

            1. So, Mr. KKK…. When you took over this business with 50 white employees and 50 black employees, you immediately fired all 50 black employees, but kept every white employee. That looks like discrimination.

              Mr. KKK: “Yes. But it wasn’t because of their race. It was because of other reasons. Which I won’t tell you.

              Sarcastro: “No intentional discrimination here! Can’t prove it based on just statistics!”

    3. We’re talking about a branch of ‘medicine’ where “She would have been upset to give live birth.” counts as medical necessity. So, sure, pretexts will be available.

    4. Anyone smart enough to get through medical school is smart enough to help a patient come up with some other reason for wanting an abortion. People give pretexts to cover up their real reasons all the time.

      Huh. I thought we were supposed to view doctors as pure as the driven snow, never operating from or dispensing medical advice based on ulterior motives.

      1. Well, I’m not sure if “Working with a patient to give that patient the procedure she wants.” counts as an “ulterior motive.” I’d certainly want my own doctors to advocate for me and for what’s in my own best interests.

        1. advocate for me and for what’s in my own best interests.

          That’s certainly one way to put it. “Gaming the system” would be another.

      2. ” I thought we were supposed to view doctors as pure as the driven snow,”
        Where did you get that mistaken idea?

        1. Most recently, from the scores of people who have patronizingly assured me that doctors carefully, conscientiously, and meticulously tabulate only bona fide deaths from COVID, rather than expediently checking the box that gets them or their employer paid significantly more for the same work.

          (If that was a serious question.)

  9. This result appears to interfere with the doctor-patient relationship, with the patient withholding relevant information that may impede the doctor from giving full, frank, and informed advice.

    1. The “docs vs. Glocks” case came to the conclusion that you couldn’t tell the docs to not ask about firearms ownership, you know, because of the First Amendment. I suppose you couldn’t come to the same reasoning here, given how judges operate, with the end policy in mind before they look at the evidence.

      1. If a fetus has been determined to have Down syndrome, there is no way that secret will be kept from either the doctor or the pregnant woman. The idea that one or the other simply won’t know is just silly.

        And if one accepts the premises behind legal abortion — which I know you don’t, but for sake of argument — then I fail to understand why that specific reason for not wanting to bring a child into the world is better or worse than any other specific reason for not wanting to bring a child into the world. If the woman feels she is unable or unwilling to parent, then how is aborting a fetus with Down Syndrome any different from aborting a perfectly healthy fetus?

        1. Down syndrome here is a placeholder for gender-selective or race-selective abortions.

          And there are real societal reasons to limit abortions for those reasons.

          1. As I understand it, race-selective abortions are mostly accomplished by Planned Parenthood clinic siting decisions.

            1. You would think that.

              1. Given the founder’s views, and where they tend to be sited, I should think that.

                1. The founder has been dead for a very long time. You really think nothing has changed since then?

                  1. Sure: They’ve developed new rationalizations for her program.

          2. The issue then becomes whether a woman’s body can be seized for nine months for the greater social good.

            Suppose a woman wants to abort a fetus for race or sex selection reasons. Whatever may be the ethics of it, the fact still remains that forcing her to have that baby is essentially seizing her body for nine months. Motherhood is a life changing event. You are placing an enormous burden on her for your social preferences. You’re basically upending her entire life.

            And because it’s such a life changing event, I’m uncomfortable putting her under the kleig lights and forcing her to give her reasons. The mere fact that she doesn’t want to do it strikes me as sufficient. Even if I might not agree with her reasons if she did state them.

            1. The issue then becomes whether a woman’s body can be seized for nine months for the greater social good.

              That ship has sailed, I’m afraid. The bodies of all non-somebodies have been seized for the “greater social good” for about 13 months now.

            2. The issue I have is the fundamental inconsistency of it. If the woman’s independence is so important that she’s allowed to kill an infant because of it, then why does her reason matter? If this is stopping slavery, then it shouldn’t matter if it’s finances, the baby’s disability, or the fact that she cannot stand the father (for any reason).

              1. “If the woman’s independence is so important that she’s allowed to kill an infant because of it, then why does her reason matter?”

                A “baby” or an “infant” (synonymous terms) has been born. Abortion does not kill an infant any more than breaking an egg kills a chicken

            3. No right is absolute. And it’s not “seizing” a woman’s body (and certainly not for 9 months, since the testing is done at ~9-10 weeks).

              Sex-selective abortions have significant effects in aggregate.

              1. “And it’s not “seizing” a woman’s body…”

                Forcing a woman to remain pregnant against her will should be called what, then?

          3. Nonsense. A genetic abnormality is in no way the same as gender or ‘race’ (whatever you think that means in this context, because I certainly don’t know).

            1. Down syndrome here is a placeholder for gender-selective or race-selective abortions.

              And there are real societal reasons to limit abortions for those reasons.

              And there are real societal reasons to limit access to guns/porn/soda or whatever each person’s personal issue of choice is.

              Sounds a bit statist for my taste.

              Once a society has decided that they will not go down the forced-birth route, why should it matter why one chooses terminate a pregnancy?

              If a young girl gets pregnant with a mixed race baby and she fears how her family will react, should she not be allowed to have an abortion.

            2. One might note that the slippery slope of “Lebensunwertes Leben” has already been trod and was not pretty.

            3. Down syndrome is a disability. And like race and gender, it’s illegal to discriminate based on disability.

          4. Alternatively, it’s a way to test the Supreme Court’s willingness to allow abortion restrictions. I think the heartbeat laws are stupid because they are asking for a major change in constitutional law. They can’t be reconciled with precedent. Like the earlier laws requiring admissions privileges, anti-eugenics laws are pushing the envelope in a way that does not require overturning politically sensitive precedent.

            1. “I think the heartbeat laws are stupid because they are asking for a major change in constitutional law. They can’t be reconciled with precedent.”

              Yeah, the pro-life movement never stops thinking that ‘What’s sauce for the goose…’

        2. The only difference I can see is that it will discourage doctors from suggesting an abortion as part of the counseling.

      2. As to “docs vs. Glocks”, I’d love to see someone quietly state that his hobby is building nukes in his backyard and that he has managed to improve the yield of the “fat man” design from using 16% of the fissile material to 48% of it in my last test explosion.

        And then going into court — assuming he could get into court — and asking the judge “If I actually detonated an atomic bomb that was three times the strength of the one that leveled Nagasaki, do you honestly think that our government wouldn’t know about it?
        So where’s the smoking hole — and the radioactive fallout and all the rest???”

        “Your honor, I was being sarcastic — and these schmucks were way to stupid to even realize that what I was saying wasn’t even possible. Like, umm, someone can touch off nukes in his back yard and no one is going to complain about the noise???”

        1. Actually sounds remarkably similar to something that happened to a friend of mine.

          UNFAIR GAME

          “Henson also continued to contribute to alt.religion.scientology, which is closely monitored by the church. One of his postings was a suggestion to land a “Cruise missile” on Gold Base; another said of Scientology, “destroy it utterly.” Henson says the messages were inside jokes: “Cruise” referred to actor Tom Cruise, a longtime Scientologist, and the “destruction” quote was a takeoff on one of L. Ron’s own incendiary statements.

          “Like I’m going to take a bomb out of my pocket and throw it over the fence,” Henson said.

          “Does that even pass the giggle test?” asked EFF’s Cohn.”

          He ended up charged with a terrorist threat, and ended up doing time on a related charge.

  10. As always, the question to ask with abortion, is “what race?”

    Down Syndrome is a red herring. I wish Christians would lay off the abortion bit.

  11. Maybe someone should challenge the law as a burden on freedom of speech? After all, if a woman tells her doctor her truthful reason for seeking an abortion, she will suffer an adverse consequence.

    1. And if an employer admits he’s discriminating based on race, he may face an adverse consequence, too.

      And if a guy tells the cops he knocked over the liquor store, that may have adverse consequences.

      1. Only if he’s discriminating against blacks. If he says he’s discriminating against whites, that’s apparently cool.

      2. If you violate the law, there may be “adverse consequences” for confessing to having committed these crimes. That’s not a freedom of speech issue because the state isn’t punishing speech per se; it is punishing violations of the law.

        That’s different from the law in question, because the law in question says it’s just fine for a woman to decide to abort a fetus because the fetus has Downs Syndrome, but it imposes a penalty if she informs her doctor that that is what she is doing. That means that the law is targeting free speech.

  12. IF you can terminate your developmentally normal baby because it will get in the way of going to the club on Saturday night, then why can’t you terminate your downs syndrome baby because it will be even more inconvenient?

  13. Let’s have an “undue burden” test for licensing schemes involving firearms and carrying such arms.

    1. You can keep someone with Down Syndrome from owning a gun, but only if the reason isn’t that they have Down Syndrome.

  14. Suppose anti-abortion zealots weaponized this by attempting to discover the names of women considering abortions then reporting that the woman in question had been tested and found that the fetus would be born with Down Syndrome?

    1. More likely they discovered the names of women carrying down syndrome babies and declared them mentally incompetent to make the decision to have an abortion…

  15. How is this different from the laws that ban aborting a cake for the wrong reasons?

    The difference is that doctors are really good at telling nurses, patients, insurance companies, whatever they want to hear in order to make the doc’s life easier.

    Prediction: EMR will have a pull down menu for “reasons the mom wants to have an abortion” and that pull down will not include Down’s because that’s not allowed. So doctor will be forced to document some other reason.

    1. If medical records need a reason, women will feel pressured to justify their decisions.

      Compare vaccination refusal. In my state and some others a refusal for religious reasons is treated more favorably than a refusal because you don’t trust vaccines. Suppose you just heard on the news that vaccines kill people with blood clots. You take your kid to the doctor and the doctor threatens to kill your kid with a shot. Scary. But your kid won’t be allowed to go to school without the shot. A doctor who wants to give you what you want could steer you to the religious refusal form. A doctor who wants your kid vaccinated will leave you to find the religous refusal form on your own.

  16. More bullshit abortion games that show the dishonesty of the courts.

    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….

    IMHO the question should be whether the state is putting an undue burden on people exercising their rights and what is the states in

    Either it’s legal or it isn’t. Let’s avoid the debate about whether it should be or not — under current law abortion is legal and Americans have a right to obtain one.

    Once you start adding motive based restrictions on an action, it’s no longer a right.

    What right does the state have in preventing doctors from performing a legal medical procedure that they are willing to perform simply because they know the reason why the patient wants a procedure? (Also I can’t help but feel like there’s an economic freedom argument to be made here somewhere? Maybe the IJ should get involved?)

    And when did the standard for rights become that it’s ok to add arbitrary restrictions so long as it doesn’t completely preclude you from exercising that right. Why should a patient have to bear the burden of having to find another provider to perform the abortion simply because the state disapproves of her motive?

    I have serious doubts that the courts would rule that it’s ok for the government to forbid gun sellers from selling guns to people who inform them that they are going hunting. I don’t think they would be OK with restricting breast implants for women who indicate that they want them in order to be strippers or porn stars.

    And what exactly is the purpose of the restriction? What is the State’s interest for this law that will potentially put a burden on women seeking an abortion for a child with DS ? The courts themselves are indicating that it wont actually “preclude a woman from choosing or obtaining an abortion” even if it is to abort a child with DS?? What is the rational basis for this law that justifies a burden on the right to an abortion??

    The amount of bad faith law that comes from abortion cases is stunning.

    1. What do you expect, when the whole thing started out with a bad faith court ruling?

      No Roe v Wade, and abortion laws would be perfectly frank about their aims.

      1. Of course you think Roe v. Wade was in bad faith.

  17. This reminds me of gun regulations. Restrictions are constitutional to the extent they are ineffective.

  18. Their is no legitimate reason for the state to mandate that only those with downs syndrome cannot be murdered by their parent. This falls under violating equal protection under the law.

  19. Knowing that you can’t do X, wouldn’t referring the work to someone else be conspiracy to commit X? Once the doctor knows the woman’s motivation, I don’t see how he/she can legally advise the patient to go somewhere else for an abortion.

    That, of course, presents all sorts of First Amendment problems – but I would have thought that of the law itself, too.

    1. That was my thought.

  20. Knowing that you can’t do X, wouldn’t referring the work to someone else be conspiracy to commit X? Once the doctor knows the woman’s motivation, I don’t see how he/she can legally advise the patient to go somewhere else for an abortion.

    I dont believe the law in question makes facilitating the abortion actionable. Just performing it yourself. The judges even address your concern :

    “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.”

    It adds more to the oddness of the ruling. The judges go to great length to remind that the law is NOT preventing the procedure from being performed or forbidding the woman from getting it for her stated reason….it merely forbids the docs from performing it IF they KNOW the reason is for Down’s Syndrome.

    It’s a painfully dumb ruling.

    1. That specific law doesn’t have to make facilitating an abortion actionable. Conspiracy is a separate crime with its own definitions. The opinion appears to just hand-wave away the problem.

  21. I have never understood laws a that punish doctors for performing abortions but let the woman off scot-free. Doctors don’t drag women off the street to perform abortions, women come to them to have it done. They are equally culpable.

    1. I have never understood laws a that punish doctors for performing abortions but let the woman off scot-free. Doctors don’t drag women off the street to perform abortions, women come to them to have it done. They are equally culpable.

      It makes more sense when you look at it through the lens of trying to find just-barely legal ways to have the state stop abortions while still being restricted by Roe v Wade. It’s death by a thousand cuts until Roe falls.

      These are all test cases to see the SCOTUS appetite revisiting Roe

      And when Roe falls, woman will be penalized as well. Qutie possible whoever brings them across state lines to get one in another state as well.

      1. If Roe falls, I believe that will effectively doom the Republican-conservative coalition’s practical relevance in American politics, law, and culture.

        Take your best shot, clingers. Your betters will handle it, as always.

      2. I recall seeing it rationalized that any woman willing to kill her own baby had an automatic insanity defense.

        But, really, we’re just trying to get the foot back in the door after the Court threw us out and slammed it shut. If the price of saving the lives of some babies is not putting the women who hire these hit men behind bars, it’s pretty cheap.

  22. First, the Congregation of Exalted Reason believes that a woman should never be compelled to tell any health care provider the reason she wishes to undergo a medical procedure and should be entitled to an abortion for at least a reasonable period after conception. The Congregation also recognizes any woman as a Congregant the moment she declares her devotion to reason and the other foundations of our belies.

    Second, great meeting of Libertarians For Statist Womb Management (joint meeting with Libertarians For Big-Government Micromanagement Of (Certain) Medical Facilities and Providers, convened at the natural spot – the “often libertarian” and “libertarianish,” reliably male Volokh Conspiracy.

  23. I have consistently opposed the Supreme Court’s abortion jurisprudence, and of course I think Ohio ahould be entitled to enact a lawlike this. I also think, however, that courts should only make changes to major legal doctrines in regular order, and lower courts need to interpret current supreme court precedent, even if they and I disgree with it, in a reasonable way.

    I recognize that under ORC 2919.101, the attending physician need only certify that he “does not have knowledge that the pregnant “
    woman was seeking the abortion in whole or in part, because of” “a test result indicating Down’s Syndrome in the unborn child.” And this could perhaps be interpreted as opening a loophole so that if the woman is carefully coached so that she is very careful in her language not to say anything about her reasons, knowledge of the intent won’t exist notwithstanding knowledge of the test result itself.

    As I understand it, under the 6th Circuit’s interpretation the physician would be perfectly free to say “I strongly recommend that you should abort the child because it has Down’s Syndrome, and you should know that a child with Down’s Syndrome would be a pain in the butt to raise. I think you should do an abortion, and that’s why. But if you decide to abort the child, be sure not to tell me why, because there’s this Ohio law that says that if you tell me you are aborting the child because of Down’s syndrome, I can’t perform the abortion. But as long as you never tell me why you’re doing the abortion, everything is cool. If you need to discuss your reasons with somebody, please see Dr. X in the next room, who has promised never to tell me what you discuss.

    This seems disingenuous. It’s a stretch interpretation of the underlying law, understanding courts have a duty to pick a constitutional interpretation if available. It turns things into a farce. It doesn’t end up serving any purpose.

    Perhaps it turns the undue burden standard into a farce and becomes an argument for a later case saying that it isn’t working and results in nothing but game-playing. But it could equally backfire the other way.

    Courts should be more straightforward about what they are doing than that. If the state’s interest in avoiding discrimination outweighs the abortion interest, say so. And lower courts might have to leave that decision to the Supreme Court.

  24. I wonder if this will affect Barrett’s opinion in the Philadelphia foster parent agency case. If she takes the position that religious rights are fundamental but the state’s interest in preventing discrimination is compelling and outweighs them, this would put her in a position to say exactly the same thing about this law.

  25. I wonder if the plaintiffs will seek SCOTUS review.

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