Wednesday, Aug 22, 2018
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Federal judge blocks Ohio's Down Syndrome abortion ban

COLUMBUS — A federal judge in Cincinnati on Wednesday temporarily blocked enforcement of a new Ohio law criminalizing an abortion if the patient seeks it at least partially because the fetus has or might have Down syndrome.

“Federal law is the law of the land,” wrote U.S. District Court Judge Timothy Black, a Democrat appointed by President Obama.

“And federal law is crystal clear: ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability’,” he wrote. “Here, Ohio’s new law wrongfully does just that: it violates the right to privacy of every woman in Ohio and is unconstitutional on its face.”

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Federal Judge Timothy Black

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He issued a preliminary injunction blocking the law, which was set to take effect on March 23. Among other things, he said the plaintiffs were likely to succeed on the merits of their claim that it would interfere with a woman’s right under the law to seek an abortion prior to the viability of the fetus.

Under Ohio law, viability is considered 20 weeks of gestation.

Supporters of the law promoted it more as an anti-discrimination law to protect those with the chromosomal defect leading to Down Syndrome rather than as an anti-abortion rights measure.

“It’s a tragedy that the court prioritized abortion-on-demand over special-needs children,” said Mike Gonidakis, president of Ohio Right to Life. “Our pro-life law simply ensured that Ohioans with Down syndrome would be protected against lethal discrimination.

“Unfortunately, the ACLU and the abortion industry callously disregarded these Ohioans,” he said. “Luckily, we have pro-life Attorney General Mike DeWine who will fiercely defend our law in order to protect our special needs community. This isn’t the end. This is just the beginning.”

A doctor who performs an abortion after learning that at least part of the motivation for it is because the patients knows or believes the fetus has Down syndrome could be prosecuted for a fourth-degree felony. That could result in up to 18 months in jail, a fine, and mandatory loss of the doctor’s medical license.

The patient could not be prosecuted.

Three abortion clinics in Cleveland, Cincinnati, and Dayton, a doctor who performs abortions, and Planned Parenthood of Ohio challenged in court House Bill 214, sponsored by Reps. Sarah LaTourette (R., Chesterland) and Derek Merrin (R., Monclova Township).

“The court rightfully saw through Ohio lawmakers’ thinly-veiled attempt to criminalize abortion and interfere in a woman’s personal health decisions,” said Freda Levenson, legal director for the American Civil Liberties Union of Ohio.

“This law does absolutely nothing to support people with disabilities,” she said. “It’s just another ploy to make it nearly impossible for Ohio women to get the care they need. We are committed to making sure this unconstitutional law is never enforced, and today’s ruling brings us one step closer.”

Among the defendants are the Department of Health, prosecutors in areas that might be asked to enforce the law, and Dr. Bruce R. Saferin, a Sylvania Township podiatrist serving on the State Medical Board that handles physician licensing matters.

“The State cannot dictate what factors a woman is permitted to consider in making her choice,” Judge Black wrote. “The State’s attempt to carve out exceptions to a categorical right where none exist fails as a matter of law.”

The case will proceed to a hearing to determine whether the temporary injunction should be made permanent. Whatever the outcome, the decision will likely be appealed.

Contact Jim Provance at jprovance@theblade.com or 614-221-0496.

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