Preterm-Cleveland v. Himes

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0264p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PRETERM-CLEVELAND; PLANNED PARENTHOOD ┐
SOUTHWEST OHIO REGION; WOMEN’S MED GROUP │
PROFESSIONAL CORPORATION; ROSLYN KADE, M.D.; │
PLANNED PARENTHOOD OF GREATER OHIO, │
Plaintiffs-Appellees, │
> No. 18-3329
│
v. │
│
│
LANCE HIMES, 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. │
┘

Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:18-cv-00109—Timothy S. Black, District Judge.

Argued: January 30, 2019

Decided and Filed: October 11, 2019

Before: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges.
_________________

COUNSEL

ARGUED: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. B. Jessie Hill, ACLU OF OHIO FOUNDATION, INC.,
Cleveland, Ohio, for Appellees. ON BRIEF: Steven T. Voigt, Tiffany L. Carwile, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. B. Jessie Hill, Freda J.
Levenson, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, Alexa Kolbi-Molinas,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Carrie Y.
Flaxman, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C.,
Jennifer L. Branch, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Melissa Cohen,
PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, New York, for
 No. 18-3329 Preterm-Cleveland v. Himes Page 2

Appellees. Michelle K. Terry, AMERICAN CENTER FOR LAW & JUSTICE, Franklin,
Tennessee, Misha Tseytlin, STATE OF WISCONSIN DEPARTMENT OF JUSTICE, Madison,
Wisconsin, Brandon D. Harper, O’MELVENY & MEYERS LLP, Washington, D.C., Justine
Lara Konicki, KOHRMAN JACKSON & KRANTZ, Cleveland, Ohio, Elise Porter, Columbus,
Ohio, for Amici Curiae.

DONALD, J., delivered the opinion of the court in which COLE, C.J., joined.
BATCHELDER, J. (pp. 10–14), delivered a separate dissenting opinion.
_________________

OPINION
_________________

BERNICE BOUIE DONALD, Circuit Judge. Before us is an appeal from the district
court’s grant of a preliminary injunction against Defendants, enjoining them from implementing
or enforcing Ohio law H.B. 214. As enacted, H.B. 214 prohibits an abortion provider from
performing an abortion with the knowledge that the decision to abort arises from a diagnosis or
indication that the unborn child has Down Syndrome. Plaintiffs, various abortion providers, sued
Defendants, the state officials responsible for implementing and enforcing Ohio law H.B. 214,
alleging H.B. 214 unconstitutionally inhibits pre-viability abortions based on a woman’s reason
for seeking the abortion. The district court granted the preliminary injunction after concluding
that Plaintiffs had shown a likelihood of success on the merits. For the following reasons, we
AFFIRM the district court.

I.

H.B. 214 was signed into law on December 22, 2017. H.B. 214 amends Section 3701.79
of the Ohio Revised Code and enacts Sections 2919.10 and 2919.101. Section 2919.10 prohibits
any person from purposefully performing or inducing or attempting to perform or induce an
abortion 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; or (3) “any other
reason to believe” that an unborn child has Down Syndrome. Ohio Rev. Code § 2919.10(B).
Violation of Section 2919.10 constitutes a fourth-degree felony, punishable by up to 18 months
in prison. Ohio Rev. Code §§ 2919.10(C) and 2929.14(A)(4). Section 2919.10 further requires
 No. 18-3329 Preterm-Cleveland v. Himes Page 3

the state medical board to revoke the license of a physician who violates it and makes that
physician liable in a civil action for compensatory and exemplary damages. Ohio Rev. Code §§
2919.10(D), (E).

Section 2919.101 requires that the performing physician attest in writing that he or she is
not aware that fetal Down Syndrome is a reason for the woman’s decision to terminate. Ohio
Rev. Code § 2919.101(A). Additionally, Section 2919.101 requires the Ohio Department of
Health to adopt rules to “assist in compliance with” Section 2919.101 within 90 days of its
effective date. Ohio Rev. Code § 2919.101(B).

On February 15, 2018, Plaintiffs filed their complaint in the district court, alleging that
H.B. 214 violates Plaintiffs’ patients’ rights to liberty and privacy, guaranteed by the Fourteenth
Amendment, because the law prohibits pre-viability abortions based on the woman’s reason for
seeking the care. The complaint sought, inter alia, declaratory judgment that the laws amended
and enacted by H.B. 214 are facially unconstitutional. At the time of filing, Plaintiffs also filed a
motion for preliminary injunction declaring H.B. 214 unconstitutional and enjoining all
Defendants from enforcing or complying with H.B. 214. The district court granted Plaintiffs’
motion, finding that under Roe and Casey, a woman is expressly and unambiguously entitled to a
pre-viability right to choose whether to terminate or continue her pregnancy.

II.

To determine whether to grant a preliminary injunction, trial courts consider and balance
four factors: (1) the likelihood that the moving party will prevail on the merits; (2) whether the
moving party will be irreparably harmed absent the injunction; (3) the prospect that others will
be substantially harmed if the court grants the injunction; and (4) the public interest in granting
the injunction. City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.
2014) (en banc). These factors are not prerequisites requiring satisfaction, but rather
“interrelated considerations” that the court must balance. Concerned Pastors for Soc. Action v.
Khouri, 844 F.3d 546, 548–49 (6th Cir. 2016). “When a party seeks a preliminary injunction on
the basis of a potential constitutional violation, ‘the likelihood of success on the merits often will
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be the determinative factor.’” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)
(quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).

On appeal from a grant or denial of a preliminary injunction, we review “the District
Court’s legal rulings de novo . . . and its ultimate conclusion [whether to issue a preliminary
injunction] for abuse of discretion.” Platt v. Bd. of Comm’rs on Grievances & Discipline of
Ohio Supreme Court, 769 F.3d 447, 454 (6th Cir. 2014) (internal quotation marks omitted).
While a “factual or legal error may alone be sufficient to establish that the court ‘abused its
discretion’ in making its final determination . . . in the absence of such an error the district
judge’s weighing and balancing of the equities should be disturbed on appeal only in the rarest of
cases.” NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989) (quoting Baja
Contractors, Inc. v. City of Chicago, 830 F.2d 667, 674 (7th Cir. 1987)).

Defendants argue that the panel should reverse the district court’s decision because the
district court applied an erroneous legal standard by creating an “absolute” or “categorical” right
to a pre-viability abortion. In support of their argument, Defendants point to language in Roe v.
Wade where the Supreme Court expressly rejected the claim that the right to abortion is
“absolute” and therefore entitles a woman to obtain an abortion “for whatever reasons she alone
chooses.” 410 U.S. 113, 153 (1973). Under this reading of Roe, Defendants argue that the
district court erred in treating the right to a pre-viability abortion as a “categorical” right that
precludes any limitations based upon the reasons for the abortion. Instead, Defendants ask this
Court to find that their alleged state interest in preventing discrimination based on a disability
does not fall under Roe and Casey because in neither case did the Supreme Court consider such
an interest. Defendants assert that instead, a strict scrutiny analysis should have been applied to
determine whether the state’s interest in preventing discrimination against persons with Down
Syndrome outweighs a woman’s right to privacy. Defendants argue that under a strict scrutiny
analysis, Plaintiffs have not shown a likelihood of success on the merits because Ohio has
compelling interests in protecting those with Down Syndrome, the integrity of the medical
profession, and the Down Syndrome community and its civic voice.
 No. 18-3329 Preterm-Cleveland v. Himes Page 5

A.

We first address Defendants’ argument that Roe and Casey do not control here. Though
the Constitution does not explicitly provide for any right of privacy, the Supreme Court has
recognized that “a right of personal privacy, or a guarantee of certain areas or zones of privacy”
is rooted in varying contexts under several Amendments to the Constitution. Roe, 410 U.S. at
152. This includes a woman’s decision whether to terminate her pregnancy. Id. at 153. While
the Roe Court found that a woman’s decision to obtain an abortion is a fundamental right, the
Court also acknowledged that “this right is not unqualified and must be considered against
important state interests in regulation.” Id. at 154. In Roe, the Court explained that, “a State
may properly assert important interests in safeguarding health, in maintaining medical standards,
and in protecting potential life” that “[a]t some point in pregnancy . . . become sufficiently
compelling to sustain regulation of the factors that govern the abortion decision.” Id. The Court
then considered the interests set forth by the State and determined when these interests become
sufficiently compelling:

With respect to the State’s important and legitimate interest in the health of the
mother, the ‘compelling’ point, in the light of present medical knowledge, is at
approximately the end of the first trimester . . . It follows that, from and after this
point, a State may regulate the abortion procedure to the extent that the regulation
reasonably relates to the preservation and protection of maternal health.
...
With respect to the State’s important and legitimate interest in potential life, the
‘compelling’ point is at viability. This is so because the fetus then presumably
has the capability of meaningful life outside the mother’s womb. State regulation
protective of fetal life after viability thus has both logical and biological
justifications. If the State is interested in protecting fetal life after viability, it may
go so far as to proscribe abortion during that period, except when it is necessary to
preserve the life or health of the mother.

Id. at 163–64.

Nearly twenty years later, the Court in Planned Parenthood of Southeastern
Pennsylvania v. Casey upheld the Roe Court’s holding, confirming that: “[t]he woman’s right to
terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule
of law and a component of liberty we cannot renounce.” 505 U.S. 833, 871 (1992). Moreover,
 No. 18-3329 Preterm-Cleveland v. Himes Page 6

the Court in Casey drew the line between a woman’s privacy right and the state’s interest in the
potential life of a fetus at viability, explaining that “[b]efore viability, the State’s interests are not
strong enough to support a prohibition of abortion . . . Regardless of whether exceptions are
made for particular circumstances, a State may not prohibit any woman from making the
ultimate decision to terminate her pregnancy before viability.” Id. at 846, 879.

Under Roe and Casey, it is clear that a law which furthers a state’s interest in protecting
the women’s health or potential life, “may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability.” Casey, 505 U.S. at 878–79 (explaining
that a state may enact rules and regulations governing abortions so long as the regulation does
not impose an “undue burden” on a woman’s right to a pre-viability abortion). This right is
categorical.1 See Planned Parenthood of Ind. and Ken., Inc. v. Comm’r of the Ind. State Dep’t of
Health, 888 F.3d 300, 311 (7th Cir. 2018) (Manion, J., concurring) (“But the fact remains that
Casey has plainly established an absolute right to have an abortion before viability. The joint
opinion says that nothing can stand between a woman and her choice of abortion before
viability.” (emphasis in original)).

Defendants attempt to place H.B. 214 outside the scope of Roe and Casey by asserting an
interest in preventing discrimination and arguing that Roe and Casey apply only to the state’s
interest in the woman’s health and potential life. This argument lacks rigor and is deceptive in
its construction. The Supreme Court has made clear that, before viability, the state’s purported
reason for prohibiting a woman from obtaining an abortion is not dispositive. See Casey, 505
U.S. at 877 (“[A] statute which, while furthering the interest in potential life or some other valid

1Defendants argue that treating the right to abortion as categorical and absolute improperly provides greater
protection to abortion rights than other constitutional rights. In doing so, Defendants compare the right to abortion
to the right to freedom of speech. However, such a comparison is inaccurate. Freedom of speech is more accurately
compared to the right to privacy, the umbrella under which the right to abortion is found. Accordingly, the right to
an abortion is more accurately compared to a specific right under freedom of speech, such as the freedom from
being compelled by the state to deliver a government-mandated ideological message. See Janus v. Am. Fed’n of
State, Cty., & Mun. Emps, Council 31, 138 S. Ct. 2448, 2463–64 (2018); Agency for Int’l Dev. v. All. for Open Soc’y
Int’l, Inc., 570 U.S. 205, 213 (2013); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). As the Court
has made clear regarding this right, “[i]f there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an
exception, they do not now occur to us.” Barnette, 319 U.S. at 642. Just as the right to be free from government
coercion of ideological speech by private individuals is categorical, so too is the right to a pre-viability abortion.
 No. 18-3329 Preterm-Cleveland v. Himes Page 7

state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice
cannot be considered a permissible means of serving its legitimate ends.”) (emphasis added); id.
at 879 (“[A] State may not prohibit any woman from making the ultimate decision to terminate
her pregnancy before viability.”) (emphasis added).

The Casey Court recognized that the right to obtain an abortion is “unique to the human
condition and so unique to the law.” 505 U.S. at 852. As the Court explained:

The mother who carries a child to full term is subject to anxieties, to physical
constraints, to pain that only she must bear. That these sacrifices have from the
beginning of the human race been endured by woman with a pride that ennobles
her in the eyes of others and gives to the infant a bond of love cannot alone be
grounds for the State to insist she make the sacrifice. Her suffering is too intimate
and personal for the State to insist, without more, upon its own vision of the
woman’s role, however dominant that vision has been in the course of our history
and our culture. The destiny of the woman must be shaped to a large extent on her
own conception of her spiritual imperatives and her place in society.

Id.

Within the abortion context, the state’s purported interest in preventing discrimination in
this case is inescapably intertwined with the state’s interest in potential life in Roe and Casey.
Without the potential life, there would be no interest in preventing discrimination. To give
credence to the argument that an interest such as preventing discrimination or stigma may lay
outside the interest in potential life and be considered separately to determine a women’s rights
to abortion would be to ignore the unique condition of abortion recognized in Casey. See
Planned Parenthood of Ind. and Ken., Inc., 888 F.3d at 307 (“It is entirely inconsistent to hold
that a woman’s right of privacy to terminate a pregnancy exists if a woman decides before she
becomes pregnant that she does not want to bear a child, but that the State can eliminate this
privacy right if a woman later decides she wants to terminate her pregnancy for a particular
purpose.”). Accordingly, we conclude that H.B. 214 is subject to the precedent set forth in Roe
and Casey and, therefore, the state’s interest in preventing discrimination does not become
compelling until viability.2

2Defendants additionally argue that they have an interest in protecting the integrity of the medical
profession. However, this asserted interest falls clearly under Roe and Casey. Roe, 410 U.S. at 154 (recognizing
 No. 18-3329 Preterm-Cleveland v. Himes Page 8

B.

We next address the four factors used to determine whether the district court
appropriately granted the preliminary injunction. First, having concluded that Roe and Casey
control, Plaintiffs have clearly shown a strong likelihood of success on the merits. Even though,
as Defendants note, H.B. 214 limits only a small subset of pre-viability abortions, because H.B.
214 has both the purpose and effect of prohibiting certain women from obtaining a pre-viability
abortion, it is invalid under Casey. Casey, 505 U.S. at 846, 879 (“Before viability, the State’s
interests are not strong enough to support a prohibition of abortion. . . Regardless of whether
exceptions are made for particular circumstances, a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability.”); see also Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016) (explaining that a law does not
have to impose a substantial obstacle on a “large fraction” of women generally because “the
relevant denominator is ‘those [women] for whom [the provision] is an actual rather than an
irrelevant restriction.’” (alterations in original) (quoting Casey, 505 U.S. at 895)).

A weighing of the other three factors tips the scales in favor of Plaintiffs as well. As to
the likelihood that the moving party would be irreparably harmed, Plaintiffs’ patients would be
irreparably harmed as a matter of law by the loss of their constitutional right to seek an abortion
before viability. See Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (“[W]hen reviewing
a motion for a preliminary injunction, if it is found that a constitutional right is being threatened
or impaired, a finding of irreparable injury is mandated.” (citing Elrod v. Burns, 427 U.S. 347,
373 (1976)); see also Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati,
822 F.2d 1390, 1400 (6th Cir. 1987) (finding irreparable injury where plaintiff showed
substantial likelihood of success on merits of constitutional challenge to abortion regulation).
Plaintiffs have likewise shown that the equities and public interest weigh in their favor.
A preliminary injunction in this case would merely preserve the status quo and ensure Plaintiffs’

that a state “may properly assert important interests in . . . maintaining medical standards”). Further, this argument
fails because “[w]hile the Supreme Court has acknowledged that a state has a legitimate interest in protecting the
integrity and ethics of the medical profession, the Supreme Court has recognized that a state cannot use its
regulatory power to impose an undue burden on a woman’s right to choose.” Preterm-Cleveland v. Himes, 294 F.
Supp. 3d 746, 756 (S.D. Ohio 2018) (citing Gonzales v. Carhart, 550 U.S. 124, 157–58 (2007)).
 No. 18-3329 Preterm-Cleveland v. Himes Page 9

patients have access to constitutionally protected health care services through the duration of the
case. And “the public is certainly interested in the prevention of enforcement of [laws] which
may be unconstitutional.” Planned Parenthood Ass’n of Cincinnati, Inc., 822 F.2d at 1400.
Finally, as to the harm to others, Defendants argue that a preliminary injunction will harm the
state because any time a state is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury. Because we have already
concluded that there is a likelihood that the statute is unconstitutional, it is “questionable whether
the [State] has any ‘valid’ interest in enforcing” it. Id. Even if the Defendants’ argument was
true, however, because all three other factors weigh in favor of Plaintiffs, the district court did
not abuse its discretion in granting a preliminary injunction.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of the preliminary
injunction.
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_________________

DISSENT
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ALICE M. BATCHELDER, Circuit Judge, dissenting. In Box v. Planned Parenthood of
Indiana and Kentucky, Inc., 139 S. Ct. 1780, 1782-93 (2019), Justice Thomas explained how
Indiana’s law “and other laws like it promote a State’s compelling interest in preventing abortion
from becoming a tool of modern-day eugenics,” id. at 1783 (Thomas, J., concurring). The same
goes for Ohio’s law H.B. 214 before us today. Even more to the point here, perhaps, given the
majority’s analysis, is the further explanation that, “[w]hatever else might be said about Casey, it
did not decide whether the Constitution requires States to allow eugenic abortions.” Id. at 1792
(Thomas, J., concurring). I would apply that reasoning here to uphold Ohio H.B. 214.

In this challenge to H.B. 214, we hear the distant echo of the sorry case of Buck v. Bell,
274 U.S. 200, 207 (1927), in which the Supreme Court upheld a Virginia law—under which state
officials sought to sterilize Carrie Buck, “the probable potential parent of socially inadequate
offspring”—by finding that to allow such births would “sap the strength of the State” and
“swamp” society “with incompetence.” The effect was the federal judicial endorsement of
eugenics. In fact, “[a]s an advertisement for eugenics, Buck v. Bell worked.” Jeffrey S. Sutton,
51 Imperfect Solutions 117 (2018). Within five years, a majority of states had enacted eugenics
laws, id., and annual forced sterilizations increased tenfold to almost 2,300. Peter Quinn, Race
Cleansing In America, 54 American Heritage, 2-3 (2003).

The eugenicist impulse on display in Buck, and amplified in its aftermath, is no mere relic
of history. Today, many countries celebrate the use of abortion to cleanse their populations of
babies whom some would view—ignorantly—as sapping the strength of society. France and
Iceland, to name only two, have in recent years achieved a birth rate of nearly zero Down
Syndrome infants.1

1The record contains a declaration by a physician and medical ethicist that France aborts 96% of unborn
children who receive a diagnosis of Down Syndrome. Iceland, as public policy, appears to be nearing a 100% rate
of abortion for unborn children diagnosed with Down Syndrome.
 No. 18-3329 Preterm-Cleveland v. Himes Page 11

Ohio enacted the Antidiscrimination Law, H.B. 214, to counteract such eugenicist
practices concerning the prenatal Down Syndrome population. The law prevents a physician
from performing an abortion when the physician knows the abortion is sought not because the
woman did not intend to become pregnant, but because the child in the woman’s womb tested
positive for Down Syndrome. Ohio concluded that permitting physicians to become witting
accomplices to the deliberate targeting of Down Syndrome babies would undermine the principle
that the Down Syndrome population is equal in value and dignity to the rest of Ohio’s
population, and would do deep damage to the integrity of the medical profession.

The majority holds Ohio’s choice unconstitutional. But controlling precedent requires
that we review laws like H.B. 214 under an undue-burden analysis, which is fact-intensive and
must consider the State’s interests and the benefits of the law, not just the potential burden it
places on women seeking an abortion. Neither the district court nor the majority here makes a
genuine attempt to meet that demand, which leaves their decisions insupportable and incorrect.

Consider Gonzales v. Carhart, 550 U.S. 124 (2007), in which the Supreme Court upheld
a federal law banning—both before and after viability—a method of partial-birth abortion. The
Court emphasized the post-viability status in describing the procedure in the second trimester:

Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them
down into the birth canal. Then he delivered the baby’s body and the arms—
everything but the head. The doctor kept the head right inside the uterus . . . The
baby’s little fingers were clasping and unclasping, and his little feet were kicking.
Then the doctor stuck the scissors in the back of the head, and the baby’s arms
jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he
is going to fall. The doctor opened up the scissors, stuck a high-powered suction
tube into the opening, and sucked the baby’s brains out. Now the baby went
completely limp . . . He cut the umbilical cord and delivered the placenta. He
threw the baby in a pan, along with the placenta and the instruments he had just
used.

Id. at 138-39. The Court’s decision to uphold the restriction rested on the doctrinal principles set
forth in Roe v. Wade, 410 U.S. 113 (1973), as refined and amended by Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833 (1992). What makes Gonzales particularly applicable
here is that there, as here, the Court dealt not with a total ban against abortion but with a
regulation that prohibited physicians from performing abortions under certain conditions. The
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Gonzales Court evaluated the partial-birth abortion law in light of two government interests:
protecting fetal life from an inhumane procedure and protecting the integrity of the medical
community. Gonzales, 550 U.S. at 156-58. Likewise, in addition to other asserted interests,
Ohio justified H.B. 2014 on the express ground that it will protect the integrity of the medical
profession.

Three principles drawn from Gonzales guide our analysis. One, pre-viability abortions
are subject to restriction, as that is precisely what Gonzales upheld. Id. at 147 (“The Act does
apply both previability and postviability.”). Two, pre-viability abortion restrictions can be
justified by a governmental interest in, among other things, “protecting the integrity and ethics of
the medical profession.” Id. at 157 (internal quotation marks omitted). And, three, the
framework for evaluating such laws is the undue-burden test, which holds that, “[w]here it has a
rational basis to act, and it does not impose an undue burden, the State may use its regulatory
power to bar certain procedures and substitute others, all in furtherance of its legitimate
interests.” Id. at 158. Applying this legal framework, our task was therefore to decide whether
the district court erred by finding that Preterm-Cleveland could likely prove that H.B. 214 lacks a
rational basis, fails to further the asserted interest, or imposes an undue burden on women
seeking abortions. See id. at 157-61.

But the district court made no effort to apply anything resembling this legal standard,
giving the nod to the undue-burden framework in a mere four sentences of conclusory rhetoric:

H.B. 214 is clearly an ‘undue burden.’ The ‘obstacle’ it places in the path of
women seeking a pre-viability abortion for one of the proscribed reasons is not
merely ‘substantial,’ it is insurmountable. H.B. 214 does not ‘burden’ the right of
such women to choose a pre-viability abortion, it eradicates the right entirely.
Because H.B. 214 prevents certain women from choosing to terminate a
pregnancy pre-viability, and because ‘the State’s interests are not strong enough
to support a prohibition of abortion or the imposition of a substantial obstacle to
the woman’s effective right to elect the procedure,’ H.B. 214 is unconstitutional.

Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746, 754-55 (S.D. Ohio 2018) (citing Casey,
505 U.S. at 846). That is not the legal framework established in Gonzales.

The district court cited no evidence to support its bald assertion that H.B. 214 places an
“insurmountable” obstacle in the path of women seeking an abortion and that alone would
 No. 18-3329 Preterm-Cleveland v. Himes Page 13

warrant reversal. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (reversing a
preliminary injunction against a Montana law because “there was insufficient evidence in the
record that the requirement posed a ‘substantial obstacle’ to abortion”). And that sparse analysis
also fails the mandate of Whole Women’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016), in which
the Court held that the undue-burden analysis requires an examination of “the burdens a law
imposes on abortion access together with the benefits those laws confer,” id. at 2309 (emphasis
added). The district court’s opinion contains no recognition of any benefits, though they are not
hard to find: Ohio’s interest in the integrity of the medical profession qualifies as rational under
Gonzales, and as an “Antidiscrimination Law,” H.B. 214 serves Ohio’s interest in upholding the
equal dignity of the Down Syndrome population by ending discriminatory practices against that
population.

The other two prongs of the Gonzales inquiry—whether the law furthers the
government’s interests and whether the law imposes an undue burden—are questions that the
district court declined to address or to develop a record on which to base an answer. A plain
reading of H.B. 214 does not alone reveal the nature or degree of any burden the law may place
on women seeking abortions. For example, while H.B. 214 does require that “the attending
physician shall indicate that [he or she] does not have knowledge” that the woman was seeking
the abortion because of the unborn child’s having Down Syndrome, H.B. 214 does not require
that a physician inquire into the motivations of the woman seeking an abortion, nor does it
require the woman to disclose her motivations, nor does it instruct a physician to speculate. Only
when a physician knows that an unborn child with a positive Down Syndrome diagnosis is being
targeted for abortion on that basis does liability attach if the physician then performs the abortion
anyway. See O.R.C. § 2929.10(B).

It is possible that, even if a woman were to volunteer that she was seeking an abortion
because her unborn child had tested positive for Down Syndrome, the physician could refer the
woman to another physician. Under a proper analysis, such a consequence may not qualify as an
undue burden. See Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 605 (6th Cir. 2006)
(“While closing the Dayton clinic may be burdensome for some of its potential patients, the fact
that these women may have to travel farther to obtain an abortion does not constitute a
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substantial obstacle.”). And whether the abortion of unborn children diagnosed with Down
Syndrome “requires specific regulation because it implicates additional ethical and moral
concerns that justify a special prohibition,” Gonzales, 550 U.S. at 158, is a question that must be
explicitly addressed.

For these reasons and those presented by Justice Thomas in his concurrence in Box, I
must respectfully dissent.