DOJ Files Brief in Support of Ohio Anti-Abortion Law

The Department of Justice filed a friend-of-the-court brief with the full United States Court of Appeals for the Sixth Circuit, in support of the constitutionality of an Ohio law prohibiting abortion providers from performing an abortion they know is sought because of Down syndrome.

“Ohio’s Antidiscrimination Law affirms that people with Down syndrome have lives worth living and protecting. The Law also protects the medical profession from harm to its integrity and protects women from abortion providers who may seek to pressure them into obtaining an abortion because of Down syndrome,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division. “The federal government has an interest in the equal dignity of those who live with disabilities. Nothing in the Constitution requires Ohio to authorize abortion providers to participate in abortions the providers know are based on Down syndrome.”

“This Ohio law prevents discrimination against individuals with Down syndrome,” said Justin E. Herdman, U.S. Attorney for the Northern District of Ohio. “Accordingly, the state of Ohio’s interests in this matter are fully aligned with those of the United States and we are not only entitled, but compelled, to weigh in as a friend of the Court.”

In 2017, Ohio’s General Assembly passed, and Ohio Governor John Kasich signed, legislation (the Antidiscrimination Law) directing that an abortion provider cannot “purposely perform or induce or attempt to perform or induce an abortion on a pregnant woman if” the provider “has knowledge that the pregnant woman is seeking the abortion” because of Down syndrome. The law expressly shields women who seek such abortions from any and all liability.

Plaintiffs challenged the Antidiscrimination Law in court before the law took effect. The district court enjoined enforcement of the Antidiscrimination Law and on appeal, that decision was upheld in a split decision by a three-judge panel of the Sixth Circuit. The dissenting judge would have upheld the Antidiscrimination Law as constitutional because there was “no evidence” that the law created a substantial obstacle to obtaining an abortion. The Sixth Circuit then voted to rehear the case before the full or “en banc” court.

The government’s friend-of-the-court brief to the full Sixth Circuit explains that the district court and divided panel were wrong to hold Ohio’s Antidiscrimination Law unconstitutional under the Supreme Court’s abortion decisions. The brief outlines that the Antidiscrimination Law serves several important purposes. It protects individuals with disabilities from prejudice and indifference and the medical profession from harm to its integrity and reputation. The law also wards against the slippery slope to medical involvement in race- or sex-based abortions. And it protects women themselves by separating them from potentially coercive abortion providers who may seek to pressure them into obtaining an abortion because of Down syndrome.

Given Congress’s abortion legislation, the United States has an interest in the application of the law in that area, and has often participated in cases involving state abortion laws. The federal government enforces civil rights laws that outlaw various forms of disability discrimination, including the Rehabilitation Act, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. It also enforces the Genetic Information Nondiscrimination Act, which protects against discrimination as to health insurance and employment on the basis of genetic information, including “of any fetus carried by [a] pregnant woman.”

You can read the brief here.