|The Potter Stewart U.S. Courthouse in Cincinnati, OH,
home to the Sixth Circuit Court of Appeals
The federal circuit courts of appeals play an incredibly important role in the United States judicial system. They are just one step below the Supreme Court — and since the Supreme Court only accepts a small fraction of the cases appealed to it, the circuit courts of appeals usually have the final word.
The Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio, and Tennessee, has recently delivered two victories for unborn children.
Preterm-Cleveland et al. v. McCloud et al. concerns an Ohio law which states:
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.
Abortion businesses sued, arguing that the law constituted a ban on abortion prior to viability and that Roe v. Wade invalidates all pre-viability bans. The state countered that the “undue burden” test set forth in later Supreme Court abortion cases was the more appropriate analytical framework.
The Sixth Circuit agreed with Ohio and, applying the undue burden test, ruled that the law could go into effect while the lawsuit is pending. Encouragingly, it found that the law advances strong societal interests in preventing discrimination against the Down Syndrome community and protecting the ethics and integrity of the medical profession; these interests are valid “throughout pregnancy, from the first day to the last.” Less encouragingly, the Sixth Circuit noted that women could still legally kill their unborn children with Down Syndrome under this law by simply staying silent about their eugenicist motivations.
In Bristol Regional Women’s Center et al. v. Slatery et al., the Sixth Circuit reinstated Tennessee’s 48-hour abortion waiting period while the abortion industry’s legal challenge winds its way through the court system. Many courts have upheld waiting periods, including the Supreme Court, which found Pennsylvania’s 24-hour waiting period constitutional in the 1992 case of Planned Parenthood v. Casey.
Both Preterm and Bristol are in the preliminary stages of litigation. The abortion industry failed to stop pro-life laws from going into effect while the lawsuits are pending, but it could be years before either case is fully resolved.