Preterm-Cleveland v. McCloud

• Decision Date: 13 April 2021
• Docket Number: No. 18-3329,18-3329
• Citation: 994 F.3d 512
• Parties: PRETERM-CLEVELAND; Planned Parenthood Southwest Ohio Region; Women's Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees, v. Stephanie MCCLOUD, Director, Ohio Department of Health; Kim G. Rothermel, Secretary, State Medical Board of Ohio ; Bruce R. Saferin, Supervising Member, State Medical Board of Ohio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

994 F.3d 512

PRETERM-CLEVELAND; Planned Parenthood Southwest Ohio Region; Women's Med Group Professional Corporation; Roslyn Kade, M.D.; Planned Parenthood of Greater Ohio, Plaintiffs-Appellees,

v.Stephanie MCCLOUD, Director, Ohio Department of Health; Kim G. Rothermel, Secretary, State Medical Board of Ohio ; Bruce R. Saferin, Supervising Member, State Medical Board of Ohio, Defendants-Appellants.

No. 18-3329

United States Court of Appeals, Sixth Circuit.

Argued En Banc: March 11, 2020

Decided and Filed: April 13, 2021

ALICE M. BATCHELDER, Circuit Judge.

This is an appeal from a district court order granting a preliminary injunction based on the plaintiffs' claim that an Ohio law, referred to herein as H.B. 214, is facially unconstitutional and, therefore, unenforceable in any respect. Because we conclude that the plaintiffs have failed to demonstrate a likelihood of success on that claim, we REVERSE the district court's imposition of the preliminary injunction.

I.

The plaintiffs are four medical service providers and one doctor who provide abortions in Ohio.¹ For all practical purposes, the defendant is the State of Ohio, represented here by the Ohio Attorney General and Solicitor General (hereinafter "Ohio" or "State").² The plaintiffs sued, raising a pre-enactment challenge to H.B. 214 (the "Antidiscrimination Law"), which prohibits a doctor from performing an abortion with the knowledge that the woman's reason for aborting her pregnancy is that her fetus has Down syndrome

and she does not want a child with Down syndrome. The plaintiffs sought a declaratory judgment that H.B. 214 is facially unconstitutional and an injunction to stop the State from implementing or enforcing it. The district court held that the right established by Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that a woman may intentionally abort her pregnancy, is absolute prior to viability and, finding the plaintiffs likely to succeed on the merits of their claim, imposed a preliminary injunction. Preterm-Cleveland v. Himes , 294 F. Supp. 3d 746 (S.D. Ohio 2018). The State appealed and a panel affirmed. Preterm-Cleveland v. Himes , 940 F.3d 318 (6th Cir. 2019). The full court granted en banc rehearing and vacated the panel opinion. Preterm-Cleveland v. Himes , 944 F.3d 630 (6th Cir. 2019) (en banc).

The State claims that the district court erred by deciding the case solely on the proposition that the right to an abortion before viability is absolute and, therefore, H.B. 214 is necessarily, categorically, or per se invalid, without further analysis. The State argues that we must decide the validity of H.B. 214 using the "undue burden test" and that H.B. 214 survives that test because it imposes no substantial obstacle on a woman's right to an abortion and furthers three legitimate interests. The plaintiffs continue to insist that H.B. 214 is a "ban" on abortions and that Supreme Court precedent absolutely and unequivocally forbids any such ban before viability. The plaintiffs also argue that, even if the "undue burden test" applies, H.B. 214 is invalid because it imposes a complete (and therefore substantial) obstacle to a woman's ability to obtain an abortion.

II.

In plain terms, H.B. 214 prohibits a doctor from performing an abortion if that doctor knows that the woman's reason for having the abortion is that she does not want a child with Down syndrome

. Specifically, as codified in the Ohio statute, H.B. 214 provides in pertinent part:

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.

O.R.C. § 2919.10(B). A violation of this provision has severe consequences: it is a fourth-degree felony punishable by up to 18 months in prison, §§ 2919.10(C) & 2929.14(A)(4) ; it requires the State Medical Board to revoke the doctor's license, § 2919.10(D) ; and it subjects the doctor to civil liability for compensatory and exemplary damages, § 2919.10(E). The woman seeking the abortion is not legally complicit in the violation and is not subject to penalty. § 2919.10(F). The doctor must attest in writing, to the Department of Health, that he or she was not aware that fetal Down syndrome

was a reason for the woman's decision. § 2919.101(A); § 3701.79(C)(7).

A.

The State asserts that H.B. 214 promotes three interrelated interests. First, it protects the Down syndrome

community—both born and unborn—from what the State perceives as discriminatory abortions, namely Down-syndrome-selective abortions. The State produced evidence that, in the United States and abroad, fetuses with Down syndrome are disproportionally targeted for abortions, explaining that: "Down syndrome is a significant reason for women to terminate their pregnancies, with between 61% and 91% choosing abortion when [it] is discovered on a prenatal test." See also

Box v. Planned Parenthood of Ind. & Ky., Inc. , ––– U.S. ––––, 139 S. Ct. 1780, 1790-91, 204 L.Ed.2d 78 (2019) (Thomas, J., concurring) (discussing the high abortion rate for children diagnosed with Down syndrome

in the United States and Western Europe). By prohibiting doctors from knowingly and deliberately eliminating fetuses because of their Down syndrome, the State intended to send "an unambiguous moral message to the citizens of Ohio that Down syndrome children, whether born or unborn, are equal in dignity and value to the rest of us."³

Second, the State asserts that H.B. 214 defends families from coercive healthcare practices that encourage Down-syndrome-selective abortions. Empirical reports from parents of children with Down syndrome

attest that their doctors explicitly encouraged abortion or emphasized the challenges of raising children with Down syndrome. There are those who openly advocate for Down-syndrome-selective abortions. See , e.g. , David A. Savitz, How Far Can Prenatal Screening Go in Preventing Birth Defects , 152 J. of Pediatrics 3, 3 (2008) (arguing that "selective pregnancy terminations and reduced birth prevalence [of Down syndrome is] a desirable and attainable goal"). Certain countries have nearly eliminated their Down syndrome populations through selective abortions; for example, "few countries have come as close to eradicating Down syndrome births as Iceland," and the "[t]he Netherlands has singled out Down syndrome as the primary target of it[s] national [prenatal] screening program." Academic literature confirms such practices within the United States medical community, including examples of health professionals who gave families "inaccurate and overly negative information," perceivably "intended to coerce a woman into a decision to terminate her pregnancy if the fetus is diagnosed with Down syndrome." Therefore, the State has justifiably expressed a "documented concern that the information provided by medical professionals during prenatal counseling may often be subtly biased towards encouraging the uptake of screening, testing, and subsequent selective abortion."

Third, the State asserts that H.B. 214 protects the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. The intent is that H.B. 214 will highlight the important medical distinction between care and indifference and will uphold the public trust in the medical community. As the State argues here, "[a]n industry associated with the view that some lives are worth more than others is not likely to earn or retain the public's trust."

These three interests have a common denominator that is both revealing and important: each is concerned with the doctor's knowing participation in a woman's decision to abort her pregnancy because she does not want a child with Down syndrome

. It is that knowing participation in such Down-syndrome-selective abortions that is the wrong that H.B. 214 aims to right. Thus, H.B. 214 allows doctors to perform such abortions when they do not know that Down syndrome is the reason, without undermining H.B. 214's specific purposes or objectives.

B.

According to the plaintiffs, women seeking Down-syndrome-selective abortions typically contact abortion clinics only after undergoing extensive testing and counseling with a high-risk obstetrician-gynecologist (OB/GYN) or maternal-fetal medicine specialist, or with a genetic counselor.⁴ In the ordinary course, the doctor who will perform the abortion may or may not learn of the fetal-Down-syndrome diagnosis. For example, according to the plaintiffs, women "sometimes bring their medical records with them to their appointment," and those records might contain information about the fetal diagnosis. Or the clinic might "request medical records for these patients from their regular [OB/GYN] or maternal-fetal medicine ... physician." Or a referring doctor might forward a patient's medical records to the clinic; wherein the referral is "usually ... indicated in the patient's chart" at the clinic.

Either way, knowledge of the diagnosis is not knowledge of the reason. None of the clinics or doctors requires women to give their reason for having the abortion. Certainly not every woman offers one. A woman might disclose her reason when she calls the clinic to make an appointment; or she might discuss it with the clinic staff during the informed-consent appointment, which occurs at least 24 hours before the procedure; or she might even volunteer it to the doctor who will perform the abortion. But no one contends that the woman's reason is "medically relevant" to the procedure, and the plaintiffs' expert candidly stated that it is not.

III.

This is an appeal of a preliminary injunction in which the district court found a...