940 F.3d 318
6th Cir.2019Background:
- Ohio enacted H.B. 214 (Dec. 22, 2017), which forbids a person from performing or inducing an abortion when the provider has knowledge that the woman seeks the abortion because the fetus has Down Syndrome; violators face felony penalties, license revocation, and civil liability.
- H.B. 214 also requires a physician attestation that they are not aware the abortion is sought for reasons related to Down Syndrome and directs the Department of Health to adopt compliance rules.
- Abortion providers filed suit alleging H.B. 214 violates the Fourteenth Amendment by prohibiting certain pre-viability abortions based on the woman’s reason for seeking abortion; they sought a declaratory judgment and preliminary injunction.
- The district court granted a preliminary injunction, enjoining enforcement of H.B. 214, finding plaintiffs likely to succeed under Roe and Casey.
- The Sixth Circuit panel affirmed the preliminary injunction, holding Roe and Casey control and that reason-based pre-viability prohibitions are unconstitutional.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Roe and Casey govern reason-based pre-viability abortion restrictions | Roe/Casey create a categorical pre-viability right; reason-based prohibitions are barred | Roe/Casey do not preclude all regulations; the abortion right is not absolute | Court: Roe/Casey control; pre-viability right is categorical and bars reason-based prohibitions until viability |
| Whether the State's interest in preventing discrimination or protecting medical integrity can justify H.B. 214 pre-viability | Such interests cannot justify prohibiting a subset of pre-viability abortions based on the woman's reason | State has compelling interests (preventing disability-based discrimination; medical integrity) warranting restriction; strict scrutiny appropriate | Court: Those interests fall under the interests considered in Roe/Casey and are not sufficiently compelling pre-viability; strict scrutiny not applied to validate the ban |
| Appropriate standard and result on preliminary injunction (likelihood of success; irreparable harm; equities; public interest) | Plaintiffs: Likely to succeed on merits; loss of constitutional right is irreparable; equities and public interest favor injunction | Defendants: District court misapplied the legal standard; statute affects only a small subset so no categorical bar; injunction improper | Court: Affirmed district court — plaintiffs showed likelihood of success, irreparable harm as a matter of law, and the balance of equities/public interest favor an injunction |
| Whether a law targeting only a subset of pre-viability abortions can be invalid under Casey | Even a law targeting a subset has purpose and effect of prohibiting certain pre-viability abortions and is invalid | Because H.B. 214 covers only a small subset, it does not effect a categorical prohibition or insurmountable burden | Court: A statute that purposefully and effectively prohibits certain pre-viability abortions is invalid under Casey, regardless of the subset size |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (recognition of a woman’s pre-viability right to choose and framework for state interests)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (upholding central pre-viability abortion right and undue-burden standard)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding certain abortion regulations and recognizing state interest in medical integrity)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (requiring courts to weigh burdens on abortion access against benefits of law under undue-burden analysis)
- Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (discusses state interest in preventing eugenic uses of abortion; cited in dissent)
- Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, 888 F.3d 300 (7th Cir. 2018) (discusses categorical nature of pre-viability right and reason-based restrictions)