[Red State] The federal Sixth Circuit Court of Appeals issued a multi-faceted and complicated en banc decision Tuesday, voting 9-7 to uphold an Ohio statute that makes it unlawful for doctors to perform abortions when they know the mother is seeking the abortion because she has learned that the child she is carrying suffers from Down Syndrome.An "en banc" decision is one where all active judges on the court participate and vote on the outcome of the case. Normally, appeals court cases are resolved by three-judge panels, but there is a process by which all the judges of the court are asked whether to review a case a second time — setting aside the panel decision — with all judges participating.
The 16 judges who participated in the case combined to write 11 different opinions. Trying to synthesize and explain all 11 opinions is beyond the scope of what I will try to accomplish here.
But there are a few "top-line" takeaways from the case that are noteworthy — one of which takes me back to a point I have made previously here that Chief Justice Roberts’ position on abortion is not well-understood. Last year, he was criticized by those who believe he reversed himself when he voted with the four liberal Justices to sustain a lower court’s ruling that the "medical privileges" statute in Louisiana was unconstitutional after having voted just four years earlier that a nearly identical statute in Texas was constitutional. I return to the issue raised by him in that case down below.
The Sixth Circuit case decided on Tuesday is Pre-Term Cleveland v. McCloud. At issue was an Ohio statute that applied to physicians, not their patients. The law did not make it illegal for a woman to seek an abortion because her baby has been diagnosed as having Down Syndrome — it only makes it illegal for a doctor to perform the abortion if he/she learns in advance that the reason the woman is seeking an abortion because the baby has Down Syndrome.
If one doctor declines to perform the procedure because of what he or she has learned, the woman can seek out another abortion provider to have the procedure which would be legal — unless the second doctor learns the same information.