The US Court of Appeals for the Sixth Circuit has upheld Ohio’s HB 214 law that prohibits doctors from performing an abortion with the knowledge that a women’s reason for terminating the pregnancy is a fetal Down syndrome diagnosis. The court ruled 9-7 Tuesday in favor of Ohio, with Judge Alice Batchelder writing for the majority along with many concurring and dissenting opinions regarding eugenics, court precedent and the legal test for abortion cases.

The plaintiffs were four medical service providers and one doctor who provide abortions in Ohio. They had sought declaratory relief regarding the unconstitutionality of HB 214 and an injunction to prevent its implementation. The district court had imposed a preliminary injunction after holding that the plaintiffs were likely to succeed since Roe v Wade gave an absolute right to a woman to intentionally abort her pregnancy prior to viability.

On the other hand, the state argued that deciding the case solely on the presupposition of an absolute right to abortion before viability is flawed. Rather, the validity of HB 214 should be decided using the “undue burden test.” HB 214 statute does not violate this test because it “imposes no substantial obstacle on a woman’s right to an abortion and furthers three legitimate interests””

1. To protect the Down syndrome community—both born and unborn—from discriminatory abortions.
2. To defend families from coercive healthcare practices that encourage Down- syndrome-selective abortions.
3. To protect the integrity and ethics of the medical profession by preventing doctors from becoming willing participants in Down- syndrome-selective abortions.

The majority opinion agreed that HB 214 advances each of these interests and produces the benefits intended by the state. Consequently, Sixth Circuit reversed the district court’s order and held that HB 214 is valid in all conceivable cases and the plaintiffs could not succeed on merits.

It disagreed regarding the absolute right to abortion before viability and also held that the right actually affected was not “the woman’s right to merely obtain an abortion.” Rather, it was regarding her right to a specific doctor since the law denied her “the doctor of her choosing when, and only when, that doctor of her choosing is a doctor who knows that her reason for the abortion is because she does not want a child with Down syndrome.” It held such a limitation to be narrow and specific, and one that did not pose an undue burden on women.

The Sixth Circuit decision conflicts with judgments of the Seventh and Eighth Circuit that have struck laws banning abortion based on disability. The circuit split has increased the possibility of a Supreme Court review.