Preterm-Cleveland v. Stephanie McCloud

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0083p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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PRETERM-CLEVELAND; PLANNED PARENTHOOD

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SOUTHWEST OHIO REGION; WOMEN’S MED GROUP

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PROFESSIONAL CORPORATION; ROSLYN KADE, M.D.;

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PLANNED PARENTHOOD OF GREATER OHIO,

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Plaintiffs-Appellees, > No. 18-3329

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v. │

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STEPHANIE MCCLOUD, 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. │

┘

On Petition for Rehearing En Banc

United States District Court for the Southern District of Ohio at Cincinnati;

No. 1:18-cv-00109—Timothy S. Black, District Judge.

Argued En Banc: March 11, 2020

Decided and Filed: April 13, 2021

Before: COLE; Chief Judge; BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON,

GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,

NALBANDIAN, and READLER, Circuit Judges.*

_________________

COUNSEL

ARGUED EN BANC: 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. Alexander V. Maugeri, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON SUPPLEMENTAL

BRIEF: Benjamin M. Flowers, Stephen P. Carney, Tiffany L. Carwile, OFFICE OF THE OHIO

*

Judge Murphy recused himself from participation in this case.

No. 18-3329 Preterm-Cleveland v. McCloud Page 2

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, Jennifer L. Branch,

GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees. Alexander V.

Maugeri, Eric S. Dreiband, Thomas E. Chandler, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., Thomas M. Fisher, OFFICE OF THE INDIANA ATTORNEY

GENERAL, Indianapolis, Indiana, Chris A. Hollinger, O’MELVENY & MYERS LLP, San

Francisco, California, Ruth Colker, THE OHIO STATE UNIVERSITY, Columbus, Ohio,

Samuel Bagenstos, Ann Arbor, Michigan, Kimberly A. Parker, WILMER CUTLER

PICKERING HALE AND DORR LLP, Washington, D.C., Devi M. Rao, JENNER & BLOCK

LLP, Washington, D.C., for Amici Curiae.

BATCHELDER, J., delivered the opinion of the court comprising Parts I–IV, V-A, V-C,

and VII, in which SUTTON, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN,

NALBANDIAN, and READLER, JJ., joined, delivered a lead opinion comprising Parts V-B, V-

D, and VI in which SUTTON, GRIFFIN, THAPAR, BUSH, and READLER, JJ., joined, and

announced the judgment of the court. SUTTON, J. (pp. 31–35), GRIFFIN, J. (pp. 36–39), and

BUSH, J. (pp. 40–52), delivered separate concurring opinions. KETHLEDGE, J. (pg. 53), in

which LARSEN and NALBANDIAN, JJ., joined, delivered a separate opinion concurring in the

opinion of the court and in the judgment. COLE, C.J. (pp. 54–55), in which MOORE, CLAY,

GIBBONS, WHITE, STRANCH, and DONALD, JJ., joined, MOORE, J. (pp. 56–71), in which

COLE, C.J., CLAY, STRANCH, WHITE, and DONALD, JJ., joined, CLAY, J. (pp. 72–78), in

which COLE, C.J., MOORE, GIBBONS, WHITE, STRANCH, and DONALD, JJ., joined,

GIBBONS, J. (pp. 79–80), in which COLE, C.J., MOORE, CLAY, WHITE, STRANCH, and

DONALD, JJ., joined, WHITE, J. (pg. 81), in which COLE, C.J., and STRANCH, J., joined, and

DONALD, J. (pp. 82–111), in which COLE, C.J., MOORE, CLAY, GIBBONS, WHITE, and

STRANCH, JJ., joined, delivered separate dissenting opinions.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. This is an appeal from a district court order

granting a preliminary injunction based on the plaintiffs’ claim that an Ohio law, referred to

herein as H.B. 214, is facially unconstitutional and, therefore, unenforceable in any respect.

Because we conclude that the plaintiffs have failed to demonstrate a likelihood of success on that

claim, we REVERSE the district court’s imposition of the preliminary injunction.

No. 18-3329 Preterm-Cleveland v. McCloud Page 3

I.

The plaintiffs are four medical service providers and one doctor who provide abortions in

Ohio.1 For all practical purposes, the defendant is the State of Ohio, represented here by the

Ohio Attorney General and Solicitor General (hereinafter “Ohio” or “State”).2 The plaintiffs

sued, raising a pre-enactment challenge to H.B. 214 (the “Antidiscrimination Law”), which

prohibits a doctor from performing an abortion with the knowledge that the woman’s reason for

aborting her pregnancy is that her fetus has Down syndrome and she does not want a child with

Down syndrome. The plaintiffs sought a declaratory judgment that H.B. 214 is facially

unconstitutional and an injunction to stop the State from implementing or enforcing it. The

district court held that the right established by Roe v. Wade, 410 U.S. 113 (1973), that a woman

may intentionally abort her pregnancy, is absolute prior to viability and, finding the plaintiffs

likely to succeed on the merits of their claim, imposed a preliminary injunction. Preterm-

Cleveland v. Himes, 294 F. Supp. 3d 746 (S.D. Ohio 2018). The State appealed and a panel

affirmed. Preterm-Cleveland v. Himes, 940 F.3d 318 (6th Cir. 2019). The full court granted en

banc rehearing and vacated the panel opinion. Preterm-Cleveland v. Himes, 944 F.3d 630 (6th

Cir. 2019) (en banc).

The State claims that the district court erred by deciding the case solely on the

proposition that the right to an abortion before viability is absolute and, therefore, H.B. 214 is

necessarily, categorically, or per se invalid, without further analysis. The State argues that we

must decide the validity of H.B. 214 using the “undue burden test” and that H.B. 214 survives

that test because it imposes no substantial obstacle on a woman’s right to an abortion and

furthers three legitimate interests. The plaintiffs continue to insist that H.B. 214 is a “ban” on

abortions and that Supreme Court precedent absolutely and unequivocally forbids any such ban

before viability. The plaintiffs also argue that, even if the “undue burden test” applies, H.B. 214

1

By name, the plaintiffs are Preterm-Cleveland, Planned Parenthood Southwest Ohio Region, Women’s

Medical Group Professional Corporation, Planned Parenthood Greater Ohio, and Roslyn Kade, M.D.

2

By designated title, the named defendants are the Director of the Ohio Department of Health, the

Secretary and the Supervising Member of the State Medical Board, and four county prosecutors, all in their official

capacities.

No. 18-3329 Preterm-Cleveland v. McCloud Page 4

is invalid because it imposes a complete (and therefore substantial) obstacle to a woman’s ability

to obtain an abortion.

II.

In plain terms, H.B. 214 prohibits a doctor from performing an abortion if that doctor

knows that the woman’s reason for having the abortion is that she does not want a child with

Down syndrome. Specifically, as codified in the Ohio statute, H.B. 214 provides in pertinent

part:

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.

O.R.C. § 2919.10(B). A violation of this provision has severe consequences: it is a fourth-degree

felony punishable by up to 18 months in prison, §§ 2919.10(C) & 2929.14(A)(4); it requires the

State Medical Board to revoke the doctor’s license, § 2919.10(D); and it subjects the doctor to

civil liability for compensatory and exemplary damages, § 2919.10(E). The woman seeking the

abortion is not legally complicit in the violation and is not subject to penalty. § 2919.10(F). The

doctor must attest in writing, to the Department of Health, that he or she was not aware that fetal

Down syndrome was a reason for the woman’s decision. § 2919.101(A); § 3701.79(C)(7).

A.

The State asserts that H.B. 214 promotes three interrelated interests. First, it protects the

Down syndrome community—both born and unborn—from what the State perceives as

discriminatory abortions, namely Down-syndrome-selective abortions. The State produced

evidence that, in the United States and abroad, fetuses with Down syndrome are

disproportionally targeted for abortions, explaining that: “Down syndrome is a significant reason

for women to terminate their pregnancies, with between 61% and 91% choosing abortion when

[it] is discovered on a prenatal test.” See also Box v. Planned Parenthood of Ind. & Ky., Inc.,

No. 18-3329 Preterm-Cleveland v. McCloud Page 5

139 S. Ct. 1780, 1790-91 (2019) (Thomas, J., concurring) (discussing the high abortion rate for

children diagnosed with Down syndrome in the United States and Western Europe). By

prohibiting doctors from knowingly and deliberately eliminating fetuses because of their Down

syndrome, the State intended to send “an unambiguous moral message to the citizens of Ohio

that Down syndrome children, whether born or unborn, are equal in dignity and value to the rest

of us.” 3

Second, the State asserts that H.B. 214 defends families from coercive healthcare

practices that encourage Down-syndrome-selective abortions. Empirical reports from parents of

children with Down syndrome attest that their doctors explicitly encouraged abortion or

emphasized the challenges of raising children with Down syndrome. There are those who

openly advocate for Down-syndrome-selective abortions. See, e.g., David A. Savitz, How Far

Can Prenatal Screening Go in Preventing Birth Defects, 152 J. of Pediatrics 3, 3 (2008) (arguing

that “selective pregnancy terminations and reduced birth prevalence [of Down syndrome is] a

desirable and attainable goal”). Certain countries have nearly eliminated their Down syndrome

populations through selective abortions; for example, “few countries have come as close to

eradicating Down syndrome births as Iceland,” and the “[t]he Netherlands has singled out Down

syndrome as the primary target of it[s] national [prenatal] screening program.” Academic

literature confirms such practices within the United States medical community, including

examples of health professionals who gave families “inaccurate and overly negative

information,” perceivably “intended to coerce a woman into a decision to terminate her

pregnancy if the fetus is diagnosed with Down syndrome.” Therefore, the State has justifiably

expressed a “documented concern that the information provided by medical professionals during

prenatal counseling may often be subtly biased towards encouraging the uptake of screening,

testing, and subsequent selective abortion.”

Third, the State asserts that H.B. 214 protects the integrity and ethics of the medical

profession by preventing doctors from becoming witting participants in Down-syndrome-

selective abortions. The intent is that H.B. 214 will highlight the important medical distinction

3

Eleven states have enacted similar laws against selective abortions. See Brief of Amicus Curiae Indiana,

Kentucky and 16 Other States, at page 1 (filed Jan. 21, 2020).

No. 18-3329 Preterm-Cleveland v. McCloud Page 6

between care and indifference and will uphold the public trust in the medical community. As the

State argues here, “[a]n industry associated with the view that some lives are worth more than

others is not likely to earn or retain the public’s trust.”

These three interests have a common denominator that is both revealing and important:

each is concerned with the doctor’s knowing participation in a woman’s decision to abort her

pregnancy because she does not want a child with Down syndrome. It is that knowing

participation in such Down-syndrome-selective abortions that is the wrong that H.B. 214 aims to

right. Thus, H.B. 214 allows doctors to perform such abortions when they do not know that

Down syndrome is the reason, without undermining H.B. 214’s specific purposes or objectives.

B.

According to the plaintiffs, women seeking Down-syndrome-selective abortions typically

contact abortion clinics only after undergoing extensive testing and counseling with a high-risk

obstetrician-gynecologist (OB/GYN) or maternal-fetal medicine specialist, or with a genetic

counselor.4 In the ordinary course, the doctor who will perform the abortion may or may not

learn of the fetal-Down-syndrome diagnosis. For example, according to the plaintiffs, women

“sometimes bring their medical records with them to their appointment,” and those records might

contain information about the fetal diagnosis. Or the clinic might “request medical records for

these patients from their regular [OB/GYN] or maternal-fetal medicine . . . physician.” Or a

referring doctor might forward a patient’s medical records to the clinic; wherein the referral is

“usually . . . indicated in the patient’s chart” at the clinic.

Either way, knowledge of the diagnosis is not knowledge of the reason. None of the

clinics or doctors requires women to give their reason for having the abortion. Certainly not

every woman offers one. A woman might disclose her reason when she calls the clinic to make

an appointment; or she might discuss it with the clinic staff during the informed-consent

appointment, which occurs at least 24 hours before the procedure; or she might even volunteer it

4

The plaintiffs produced a declaration from Dr. Justin Lappen, a maternal-fetal specialist who performs

abortions at Preterm-Cleveland’s abortion clinic, as well as other declarations indicating that women typically

consult with maternal-fetal specialists and genetic counselors who are not affiliated with the plaintiffs’ clinics. The

point is that maternal-fetal specialists and genetic counselors are not necessarily affiliated with the plaintiffs’ clinics.

No. 18-3329 Preterm-Cleveland v. McCloud Page 7

to the doctor who will perform the abortion. But no one contends that the woman’s reason is

“medically relevant” to the procedure, and the plaintiffs’ expert candidly stated that it is not.

III.

This is an appeal of a preliminary injunction in which the district court found a likelihood

that H.B. 214 is an impermissible infringement on women’s “unfettered right to choose whether

to terminate, or continue, a pregnancy pre-viability,” and therefore enjoined the defendants from

implementing or enforcing H.B. 214. Preterm-Cleveland, 294 F. Supp. 3d at 758.

In assessing and deciding a motion for a preliminary injunction, trial courts balance four

factors: (1) the likelihood that the moving party will succeed on the merits; (2) whether the

moving party will suffer irreparable injury in the interim without the injunction; (3) whether the

injunction will cause substantial harm to others; and (4) whether the injunction will serve the

public interest. City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.

2014) (en banc). “These four factors are not prerequisites that must be met, but interrelated

considerations that must be balanced.” Concerned Pastors for Soc. Action v. Khouri, 844 F.3d

546, 548-49 (6th Cir. 2016) (quotation marks and citation omitted). “When a party seeks a

preliminary injunction on the basis of a potential constitutional violation, the likelihood of

success on the merits often will be the determinative factor.” Schimmel, 751 F.3d at 430

(quotation marks and citations omitted).

In an appeal from the grant of a preliminary injunction, we review de novo, as a question

of law, the district court’s determination that the moving party is likely to succeed on the merits.

Id. We review for an abuse of discretion the district court’s determination that the factors weigh

in favor of granting the injunction. Id. In this appeal, however, because we find the likelihood-

of-success factor determinative, we need not consider the balance of other factors.

IV.

The plaintiffs based their action for a declaratory judgment and a preliminary injunction

on their claim that the right to an abortion prior to fetal viability is absolute and, therefore,

No. 18-3329 Preterm-Cleveland v. McCloud Page 8

H.B. 214 violates it per se. The district court decided the action and imposed the injunction by

holding that the plaintiffs were likely to succeed on the merits of that claim.

But as a legal proposition, that claim contains three flaws. One, the right to an abortion,

even before viability, is not absolute. Two, viability is not germane to this analysis or decision.

And three, the “right” actually implicated or affected here is not the woman’s right merely to

obtain an abortion. The plaintiffs cannot succeed on a claim framed in this way.

A.

The right to an abortion before viability is not absolute. The “[S]tate may regulate

abortion before viability as long as it does not impose an undue burden on a woman’s right to

terminate her pregnancy.” Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436, 443 (6th Cir. 2003)

(quotation marks omitted, emphasis added); Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d

187, 193 (6th Cir. 1997) (“States therefore can regulate abortion pre-viability as long as such

regulation does not constitute an undue burden on a woman’s right to choose to have an

abortion.”). Even when we expressly characterized a regulation as a “ban,” a “total ban,” and an

“outright ban,” we still applied the undue-burden test. Planned Parenthood Sw. Ohio Region v.

DeWine, 696 F.3d 490, 513-14 (6th Cir. 2012); id. at 508 (Moore, J., dissenting) (characterizing

the “ban”).

In Roe, 410 U.S. at 153, the Supreme Court said, “we do not agree” with the contention

“that the woman’s right is absolute and that she is entitled to terminate her pregnancy at

whatever time, in whatever way, and for whatever reason she alone chooses.” In Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876 (1992) (plurality), the

lead opinion corrected the mistaken view of Roe that saw any or all pre-viability “attempts to

influence a woman’s decision . . . as unwarranted,” saying that such an absolute rule was

“incompatible with the recognition that there is a substantial state interest in potential life

throughout pregnancy.” And, in Gonzales v. Carhart, 550 U.S. 124, 146-47 (2007) (upholding

an abortion regulation that applied “both previability and postviability”), the Court reemphasized

that “Casey rejected . . . the interpretation of Roe that considered all previability regulations of

abortion unwarranted.”

No. 18-3329 Preterm-Cleveland v. McCloud Page 9

In the Court’s most recent abortion case, June Medical Services LLC v. Russo, 591 U.S.

--, 140 S. Ct. 2103 (2020), the plurality opinion contains a fleeting reference to viability at the

very end: “Since Casey, we have repeatedly reiterated that the plaintiff’s burden in a challenge to

an abortion regulation is to show that the regulation’s purpose or effect is to place a substantial

obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 2133 (plurality)

(quotation marks, editorial marks, and citations omitted). The opinion does not refer to viability

at all in its discussion of the legal standards. See id. at 2120. The concurring opinion alludes to

viability twice but without any suggestion that it alters the test. Id. at 2135 & 2139 n.3 (Roberts,

C.J., concurring in the judgment). Both opinions appear to accept that the universal standard for

abortion cases is the undue-burden test, without caveat for a separate or subsidiary absolute rule.

Simply put, there is no absolute or per se right to an abortion based on the stage of the

pregnancy. The district court erred by so holding, and the plaintiffs cannot succeed on that

proposition standing alone or show any likelihood that they could do so.

B.

The legal construct of “viability” is not determinative in, or even germane to, this

analysis and decision. The difference between pre- and post-viability does not change the

purpose, legitimacy, or weight of the three interests the State proffers here. Nor are the effects of

the burdens here any different at any point during the pregnancy. In the Supreme Court’s

abortion jurisprudence, “viability” is a concept that originated in Roe to answer the State’s

argument that its interest in defending the life of the fetus justified its ban on abortion. The

Court held that, because “the word ‘person,’ as used in the Fourteenth Amendment, does not

include the unborn,” Roe, 410 U.S. at 158, the State had no interest in defending the life of a

nonperson, but:

With respect to the State’s important and legitimate interest in potential life, the

‘compelling’[5] 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

5

Because Roe, 410 U.S. at 155, applied “strict scrutiny,” the standard was a “compelling” state interest.

No. 18-3329 Preterm-Cleveland v. McCloud Page 10

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 (emphasis added; paragraph break inserted).

In this case, Ohio does not rely on its interest in protecting potential fetal life as support

for H.B. 214, at least not expressly. Instead, Ohio relies on its interests in: (1) protecting the

Down syndrome community from the stigma it suffers from the practice of Down-syndrome-

selective abortions; (2) protecting women whose fetuses have Down syndrome from coercion by

doctors who espouse and advocate the abortion of all such fetuses; and (3) protecting the

integrity and ethics of the medical profession by preventing doctors from enabling such targeted

abortions. Neither the intent, effect, validity, nor importance of any of these interests turns on

the viability of the fetus. The strength of these interests is the same throughout pregnancy, from

the first day to the last. Put another way, if these interests would support H.B. 214 after viability,

then they support it equally before viability because none of them depends on a distinction

between whether a fetus is a person or a nonperson. The plaintiffs’ emphasis on pre-viability is

misplaced.

C.

And the issue here is not really about a woman’s right or ability merely to obtain an

abortion. Even under the full force of H.B. 214, a woman in Ohio who does not want a child

with Down syndrome may lawfully obtain an abortion solely for that reason. H.B. 214 does not

prohibit her from choosing or obtaining an abortion for that, or any other, reason. It bars a

doctor from aborting a pregnancy when that doctor knows the woman’s specific reason and that

her reason is: the forthcoming child will have Down syndrome and, because of that, she does not

want it.

If the law said that a woman may not obtain an abortion because the forthcoming child

would have Down syndrome, then this would be a different case. Going one step further, if the

law said that a doctor may not perform an abortion because the forthcoming child would have

Down syndrome, that too would be a different case. But H.B. 214 does not say either thing.

This leads back to the question of: What does H.B. 214 do?

No. 18-3329 Preterm-Cleveland v. McCloud Page 11

D.

The named plaintiffs are abortion providers, acting as proxies for the true parties in

interest: women who would have an abortion but for H.B. 214. It is a very specific subset of

women. It is a woman (1) who is pregnant with a child whom she has good reason to believe has

Down syndrome, (2) who does not want a child with Down syndrome and, therefore, wants to

abort her pregnancy for that reason, and (3) who wants her abortion performed by a doctor who

knows that is her reason. So, what “right” does this particular woman possess that H.B. 214

would infringe? Or considered more concretely: What does H.B.214 prevent this woman from

doing?

The plaintiffs, the district court, and the dissent authored by Judge Donald all claim that

H.B. 214 prevents this woman from having an abortion. Period. That absolute view certainly

eases the analysis, as is made evident in the dissent, which is an hammer-on-anvil pounding of

that theme. But we cannot agree with that. As already explained, even under the full force of

H.B. 214, any woman who does not want a child with Down syndrome may lawfully obtain an

abortion solely for that reason. Because Judge Donald’s dissent is predicated on the premise that

H.B. 214 categorically bans the woman’s access to abortion, this puts us in an irreconcilable

disagreement on the meaning and effect of H.B. 214, such that—as each side sees it—we are

considering H.B. 214 as two differently worded laws. And we cannot read H.B. 214 that way.

In his separate dissent, Chief Judge Cole claims that H.B. 214 prevents this woman from

exercising her right, protected by the Free Speech Clause of the First Amendment, to tell her

Down-syndrome-selective reason to the doctor who would perform her abortion. While we

certainly understand the plaintiffs to be arguing that H.B. 214 burdens their ability to share their

Down-syndrome-selective reason with the doctor who would perform the abortion, the plaintiffs

did not raise any First Amendment Free Speech claim. The plaintiffs raised only a substantive-

due-process claim based on the right to an abortion established in Roe. Chief Judge Cole’s First

Amendment Free Speech argument was not before the district court or the panel, nor was it

argued in this en banc appeal. We have not heard the State’s side of this argument. In fact, we

have not even heard the plaintiffs’ views on this issue. This is not properly before us.

No. 18-3329 Preterm-Cleveland v. McCloud Page 12

In our view, the effect of H.B. 214 on this woman is to deny her the doctor of her

choosing when, and only when, that doctor of her choosing is a doctor who knows that her

reason for the abortion is because she does not want a child with Down syndrome. By

preventing the doctor from joining the woman as a knowing accomplice to her Down-syndrome-

selective decision making, H.B. 214 prevents this woman from making the doctor a knowing

participant (accomplice) in her decision to abort her pregnancy because her fetus has Down

syndrome. As limitations or prohibitions go, this is specific and narrow. The result is that the

“right” at issue would be the woman’s right to a specific doctor (one with knowledge of her

specific Down-syndrome-selective reason for the abortion). One would be hard pressed to find

that right established anywhere. See Roe, 410 U.S. at 153 (denying the contention “that the

woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in

whatever way, and for whatever reason she alone chooses”); cf. DeWine, 696 F.3d at 514-15

(“Importantly, the Supreme Court has not articulated any rule that would suggest that the right to

choose abortion encompasses the right to choose a particular abortion method.”). More to the

point, if there is an argument to be made that there exists such a constitutional right, the plaintiffs

have not made it.

Regardless, the plaintiffs did not in their complaint or their ensuing arguments state their

claim as a right to a specific doctor. The plaintiffs’ claim is that, for this particular woman (who

wants or needs her abortion to be performed by a doctor who knows her Down-syndrome-

selective reason), H.B. 214 would cause her to forgo the abortion and, instead, have her baby.

In deciding the truth of this claim, the question becomes whether the burden that H.B.

214 imposes on this woman’s choosing or obtaining the abortion is “undue.” See DeWine,

696 F.3d at 507 (“If the only available abortion method is so undesirable as to make the woman

choose to have no abortion at all, the undue-burden framework remains the appropriate remedy

for addressing that concern.”). The Supreme Court has given us a particular test to answer this

question.

No. 18-3329 Preterm-Cleveland v. McCloud Page 13

V.

Since Roe, which struck down an outright prohibition on abortion, most abortion cases

concern laws that impede or obstruct a woman’s ability to obtain an abortion. See June Med.

Servs., 140 S. Ct. at 2112 (plurality); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2300 (2016); Casey, 505 U.S. at 844. A second, slightly different class of abortion cases

concerns laws that do not affect a woman’s ability to obtain an abortion, but instead regulate the

method of abortion, meaning that they prohibit a doctor from performing one type of abortion

but permit other types. See Gonzales, 550 U.S. at 140-43; Stenberg v. Carhart, 530 U.S. 914,

921-22 (2000). This case concerns a law directed at neither a woman’s ability to obtain an

abortion nor the method of abortion. Instead, as just explained, it prohibits a doctor from

aborting a pregnancy if the doctor knows that the woman’s purpose is to preclude the birth of a

child who will have Down syndrome, but it permits that same abortion if the doctor does not

know. Thus, from the plaintiffs’ perspective, it regulates (via the doctor) the reason behind the

woman’s decision.

The Court has created two unique tests that are specific to abortion cases. The first is the

“undue burden test,” in which a law concerning abortion will survive a challenge if it (1) furthers

a legitimate or valid state interest,6 and (2) does not have either the purpose or effect of creating

a “substantial obstacle” to the woman’s ability to obtain an abortion. June Med. Servs., 140 S.

Ct. at 2120 (Breyer, J., for the plurality); id. at 2135 (Roberts, C.J., concurring in the judgment);

Whole Woman’s Health, 136 S. Ct. at 2309; Gonzales, 550 U.S. at 146; Casey, 505 U.S. at 878

(plurality). The other unique test used for abortion cases is the “large fraction test,” which

applies when the plaintiff makes a “facial” constitutional challenge to the law, such as the

plaintiffs made here. Under that test, the law is invalid in all cases, without exception (“on its

face”), if it poses an “undue burden” in a “large fraction” of relevant cases, even if it would not

6

It appears that in this context the Court has used the words “legitimate” and “valid” interchangeably. See

Gonzales, 550 U.S. at 146 (“whether the Act furthers the legitimate interest of the Government”); id. at 158 (where

the State acts “in furtherance of its legitimate interests”); June Med. Servs., 140 S. Ct. at 2120 (Breyer, J., for the

plurality) (“furthering a valid state interest” (editorial marks omitted) (quoting Whole Woman’s Health, 136 S. Ct. at

2309, quoting Casey, 505 U.S. at 877)); id. at *2138 (Roberts, C.J., concurring) (describing “the threshold

requirement that the State have a ‘legitimate purpose’” (quoting Casey, 505 U.S. at 878)).

No. 18-3329 Preterm-Cleveland v. McCloud Page 14

pose an undue burden in some (small fraction of) cases. See Whole Woman’s Health, 136 S. Ct.

at 2309, 2313.

A.

The “undue burden test” holds that if a law creates a “substantial obstacle” to a woman’s

ability to obtain an abortion, then it poses an undue burden on her protected right, is invalid, and

must be struck down. Id. at 2309. So, the crux of that test is whether the law creates a

“substantial obstacle”—a question more easily asked than answered because the Court has

suggested differing ways of identifying a “substantial obstacle.” Most recently, in June Medical,

the Court split sharply on this issue, with the four-member plurality (“June Medical plurality”)

asserting a sliding-scale balancing test in which a regulation poses a “substantial obstacle”

whenever its burden exceeds its benefit, June Med. Servs., 140 S. Ct. at 2120, and the Chief

Justice, concurring in the judgment only (“June Medical concurrence”), asserting a binary test in

which a regulation poses a “substantial obstacle” only when the burden is objectively

“substantial,” regardless of any benefit, id. at 2138.7 In Gonzales, 550 U.S. at 164-67, which

concerned laws that regulate the “method of abortion,” the Court used a slightly different test

that emphasized the State’s interests, limited the doctors’ interest, and used “reasonable

alternatives” to show the absence of a substantial obstacle.

After oral argument in this appeal, a panel deciding a separate appeal published an

opinion in which we explained that “[b]ecause no opinion in June Medical Services garnered a

majority,” we faced “the ‘vexing task’ of deciding which opinion controls.” EMW Women’s

Surgical Center, P.S.C. v. Friedlander, 978 F.3d 418, 431 (6th Cir. 2020) (reh’g en banc denied

Dec. 31, 2020) (citation omitted). We applied Marks v. United States, 430 U.S. 188, 193 (1977),

to determine that the June Medical concurrence was the narrowest opinion and, therefore, the

governing law. EMW, 978 F.3d at 432-33. That was EMW’s holding and this is its test:

7

The June Medical plurality and Whole Woman’s Health opinions are effectively the same, at least for

present purposes. See June Med. Servs., 140 S. Ct. at 2133 (plurality) (“This case is similar to, nearly identical with,

Whole Woman’s Health[ a]nd the law must consequently reach a similar conclusion.”). Citation and reference to the

June Medical plurality in this analysis, as a stand-in for Whole Woman’s Health, is done to keep it on par with the

June Medical concurrence. This opinion could have, alternatively, referred to Whole Woman’s Health and omitted

reference to the June Medical plurality without changing anything but the names and citations.

No. 18-3329 Preterm-Cleveland v. McCloud Page 15

Under the Chief Justice’s controlling opinion [in June Medical], a law regulating

abortion is valid if it satisfies two requirements.

First, it must be reasonably related to a legitimate state interest. Because we are

to apply the traditional rule of deference to the state’s medical and scientific

judgments, this requirement is met whenever a state has a rational basis to use its

regulatory power.

Second, the law must not have the effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus.

Under the law of our circuit, a woman faces a substantial obstacle when she is

deterred from procuring an abortion as surely as if the government has outlawed

abortion in all cases. Even if a law regulating abortion is unconstitutional in some

applications, the law remains facially valid so long as it does not impose an undue

burden in a large fraction of the cases in which the regulation is relevant.

Id. at 433-34 (quotation marks, editorial marks, and citations omitted; paragraph breaks inserted).

Because the test articulated in EMW is the controlling law of our Circuit, we apply it here.

B.

Before proceeding, we can briefly recap the State’s view of H.B. 214’s benefits and

articulate the plaintiffs’ view of its burdens. Ohio asserts that H.B. 214 furthers three valid and

legitimate interests by protecting: (1) the Down syndrome community from the practice of

Down-syndrome-selective abortions and the stigma associated with it; (2) pregnant women and

their families from coercion by doctors who advocate the abortion of Down-syndrome-afflicted

fetuses; and (3) the integrity and ethics of the medical profession by preventing doctors from

becoming witting participants in Down-syndrome-selective abortions. See Section II.A, supra.

These are legitimate interests. See Gonzales, 550 U.S. at 157; Washington v. Glucksberg,

521 U.S. 702, 732 (1997) (“The State’s interest here goes beyond protecting the vulnerable from

coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and

inaccurate stereotypes, and ‘societal indifference.’” (citation omitted)). The common theme of

these interests is the doctor’s knowing participation in the Down-syndrome stigmatic decision

making.

The plaintiffs assert that H.B. 214 burdens the right to an unencumbered abortion. In our

careful review of the plaintiffs’ briefing, we have identified as many as five articulable burdens

that, the plaintiffs argue, H.B. 214 will impose on a woman: (1) it will prevent her from having a

No. 18-3329 Preterm-Cleveland v. McCloud Page 16

full, open, and honest conversation with the doctor who will perform her abortion by forcing her

to withhold this specific reason for the abortion; (2) it may cause, encourage, or influence her to

adjust or misrepresent her reason for the abortion; (3) it may cause her to conceal her medical

history, if that history contains a pre-natal diagnosis or other significant indicators of fetal Down

syndrome; (4) it may necessitate that she engage in “doctor shopping” to find a doctor who is

unaware of her reason for having the abortion; and (5) it may cause her to forgo the educational,

counseling, or assistance programs offered to women with a Down-syndrome fetus.

While the plaintiffs might not have been so explicit or precise in proffering each of these

burdens—and they certainly did not enumerate these burdens in this way—neither were they

vague or unclear in presenting the substance of their claims. Without delving into the

substantiality or weight of these proposed burdens, we find that even if the second, third, and

fifth items on the above list would be cognizable burdens standing alone, they add little to the

analysis here because—as a practical matter—they are necessarily included in the first and fourth

items.

The second burden on the list—i.e., that H.B. 214 may cause or encourage a woman to

reconsider or adjust her reason for having the abortion—is one of H.B. 214’s fundamental

objectives. Cf. Gonzales, 550 U.S. at 160 (“It is a reasonable inference that a necessary effect of

the regulation and the knowledge it conveys will be to encourage some women to carry the infant

to full term, thus reducing the absolute number of late-term abortions.”). As the State argues in

its briefing, the plaintiffs “provide no sound reason to believe that women who want Down-

syndrome selective abortions will continue to reveal their motives, or that doctors will otherwise

continue to learn those motives, once [H.B. 214] is in effect.” Moreover, it is questionable

whether a woman would willingly announce that motive if she recognized that doing so was

hurtful to many in the Down syndrome community. To the extent that H.B. 214 might influence

a woman to misrepresent her reason, that would be her personal choice. Regardless, as a

practical matter, any burden the woman feels from withholding this reason from the doctor who

will perform her abortion is included in the first item on the list. The possibility that a woman,

when speaking with the doctor who would perform her abortion, might decide to change her

No. 18-3329 Preterm-Cleveland v. McCloud Page 17

reason (or lie about her reason) on sober second thought is not a separate burden on a woman’s

ability to choose or obtain an abortion.

The third and fifth burdens on the list—i.e., that H.B. 214 may force her to conceal her

medical history or forgo Down-syndrome-related counseling or assistance programs for fear that

this might reveal her Down-syndrome-selective reason to the doctor—do not arise from H.B.

214. The law prohibits a doctor from performing an abortion if (1) the woman knows or

reasonably believes the fetus has Down syndrome; and (2) she wants an abortion because of that

Down syndrome; and (3) the doctor knows that is her reason. See O.R.C. § 2919.10(B). We

must credit all three requirements. Certainly, a test result or prenatal diagnosis in her medical

record would be direct evidence of the first element and her participation in Down-syndrome

counseling or assistance programs would be comparable circumstantial evidence. But proving

element one does not automatically prove elements two or three; the woman’s knowledge that

her fetus has Down syndrome is not a per se reason for wanting the abortion. As the plaintiffs

themselves have stressed in this case, women seek abortions for a variety of reasons, including

health, family, financial, or other personal reasons. Therefore, these do not appear to be

cognizable burdens.

Even in circumstances in which both the doctor and the woman know of the fetal-Down-

syndrome diagnosis, for the doctor to have the actual knowledge necessary under H.B. 214, the

woman must somehow reveal to that doctor her otherwise private opinion that (a) she does not

want a child with Down syndrome and (b) that is why she is having the abortion. Consequently,

to the extent that H.B. 241 might cause a woman to withhold her medical history or bypass

Down-syndrome counseling or assistance programs for fear of revealing her reason to the doctor

who would perform her abortion (as part of her full and open conversation with that particular

doctor), these “burdens” are subsumed by the first item on the list.

Therefore, in conducting the analysis that follows, we rely on the plaintiffs’ first and

fourth asserted burdens: H.B. 214 will prevent a full, open, and honest conversation with the

doctor who will perform her abortion; and H.B. 214 may force a woman seeking an abortion to

engage in “doctor shopping” to find a doctor who is unaware of her reason for seeking the

abortion.

No. 18-3329 Preterm-Cleveland v. McCloud Page 18

C.

The plaintiffs argue that H.B. 214 imposes a categorical ban on a subset of pre-viability

abortions. But, as shown, H.B. 214 is not a ban. Even under the full force of H.B. 214, a woman

in Ohio who does not want a child with Down syndrome may lawfully obtain an abortion. H.B.

214 does not prohibit her from choosing or obtaining an abortion for that, or any other, reason.

To the extent that H.B. 214 amounts to a prohibition, it prohibits a doctor from aborting a

pregnancy when that doctor knows the woman’s particular reason, and that the reason is that

(a) she knows or has reason to know that the forthcoming child will have Down syndrome and

(b), at least in part because of that, she does not want it. The district court erred by granting a

preliminary injunction on the ground that H.B. 214 eradicated the woman’s right to an abortion.

H.B. 214 advances the State’s legitimate interests and will not prevent a large fraction of

the women it affects from obtaining abortions. As mentioned, H.B. 214 furthers three valid and

legitimate interests by protecting: (1) the Down syndrome community from the stigma associated

with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families

from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and

(3) the integrity and ethics of the medical profession by preventing doctors from becoming

witting participants in Down-syndrome-selective abortions. These are legitimate interests. See

Gonzales, 550 U.S. at 157; Washington, 521 U.S. at 732. Together, these three interests focus on

a doctor’s knowing participation in a decision to abort a pregnancy because the forthcoming child

would have Down syndrome, and H.B. 214’s overall objective is to prevent that conduct. H.B.

214 is reasonably related to Ohio’s legitimate interests. See EMW, 978 F.3d at 433.

Next, we ask whether the law has the purpose or effect of placing a substantial obstacle in

the path of a woman seeking an abortion. See id. at 434. The burdens here are that H.B. 214 will

(1) prevent a full, open, and honest conversation with the doctor who will perform the abortion

by forcing the woman to withhold this reason for the abortion and (2) require her to engage in

“doctor shopping” to find a doctor who is unaware of her reason for having the abortion.

Thus, we consider whether these burdens would likely prevent a significant number of

women from obtaining an abortion. See id. Given that laws that merely increase costs, create

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potential delays, necessitate judicial bypass, or require the dissemination of truthful, non-

misleading information are not substantial obstacles, see June Medical concurrence, 140 S.Ct. at

2136-37, then neither is a law that merely prevents a doctor from acting on a statement or

opinion from a patient that is—as the plaintiffs’ expert put it—not “medically relevant.” The

plaintiffs have not shown, nor even genuinely argued, that this act by this woman (expressing

this personal and otherwise private opinion to the doctor who will perform her abortion) is

necessary to either her choice to have the abortion or the doctor’s ability to perform it. Failing

that, they have not shown that the withholding of this opinion or reason is any more burdensome

than additional delay, cost, or travel. Would any woman who is otherwise set on having an

abortion choose not to have that abortion (and instead have the baby) solely because she could

not have the abortion performed by the specific doctor to whom she desires to reveal (or has

revealed) that her reason for the abortion is that she does not want a child with Down syndrome?

Taking the next step, would a significant number of such women do so?8 We think the answer to

both questions is clearly no, but more importantly, the plaintiffs have certainly made no such

showing.

What happens if the woman accidentally, defiantly, or without an understanding of the

law reveals that reason to the doctor? In that case, to comply with H.B. 214, the doctor must

disqualify him- or herself from performing that abortion. The woman must then secure a

different doctor who is unaware that is her reason, possibly through a referral by the first doctor.

Certainly, even with a referral, this could take some time, it would likely cost some additional

money, and it might force her to travel farther than she would have had to otherwise. But,

without something more, the Court has already determined that these types of burdens do not rise

to the level of an objectively substantial obstacle. See id. at 2136–37; Casey, 505 U.S. at 886

(finding that delays of “much more than a day” and “travel [of] long distances” were not a

“substantial obstacle”); 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

8

To put it in fraction-like terminology: The denominator would be those women who (without H.B. 214)

would be set on having an abortion because they believe the child has Down syndrome. See O.R.C. § 2919.10(B).

The numerator would be the number of those women who (now aware of H.B. 214) would be unwilling to have an

abortion because they cannot have it performed by a doctor who knows the reason. Or, emphasizing the plaintiffs’

contention, because they cannot share that reason with that particular doctor.

No. 18-3329 Preterm-Cleveland v. McCloud Page 20

that these women may have to travel farther to obtain an abortion does not constitute a

substantial obstacle.”).

Ultimately, the question is whether these burdens will have the effect of precluding a

woman from choosing or obtaining an abortion. The evidence demonstrates that they will not.

In the plaintiffs’ proffered evidence, Chrisse France, Preterm-Cleveland’s Executive Director,

states via affidavit that Preterm-Cleveland “will have no choice” but to refuse to provide

abortions to women who have reason to believe their child has Down syndrome. She does not

explain, however, why Preterm-Cleveland would not be able to provide abortions to such women

if the doctor were unaware of their specific motive. Drs. Lappen and Kade express the same

view. None of the plaintiffs’ declarants, however, says that the doctor would be unable to

perform an abortion if the doctor were unaware that the woman has this motive. Dr. Lappen’s

affidavit effectively admits that women affected by H.B. 214 could still obtain abortions simply

by not disclosing this motive to that specific doctor, stating: “I am concerned [that] H.B. 214 will

encourage women who have had Down syndrome testing and decide to proceed with an abortion

to hide the test results from the physician and staff who will provide the abortion.” These

declarants claim they would advise such women to seek an abortion in another state, but none

explains why the provider would not be able to refer such women to another doctor in Ohio who

would be unaware of the woman’s motive. There is at this point no basis to conclude that the

plaintiffs are likely to succeed in showing that H.B. 214 will impose an undue burden. See

EMW, 978 F.3d at 433-34.

The plaintiffs argue that “knowledge” is defined so broadly under Ohio law that, by

incorporating a knowledge requirement, H.B. 214 imposes a duty on abortion providers to

proactively investigate a woman’s reasons for wanting an abortion before performing one. That

is, if a doctor knows of a Down-syndrome diagnosis, say the plaintiffs, Ohio law requires that the

doctor inquire into the woman’s reasons for having the abortion. The plaintiffs are right that

“knowledge” is defined broadly. See O.R.C. § 2901.22. But Ohio’s broad definition of

knowledge does not alter the reality that the woman remains in control of who knows, and who

does not know, the reason for her abortion. And the record simply does not support the notion

that a large number of doctors would independently learn of the reason such that it would place a

No. 18-3329 Preterm-Cleveland v. McCloud Page 21

substantial obstacle in the path of most women seeking abortions. See Casey, 505 U.S. at 895.

Ohio’s knowledge requirement does not amount to an undue burden.

The plaintiffs’ argument regarding the lack of a health exception also fails. They argue

that H.B. 214 is unconstitutional because it has no life or health exception for a woman whose

fetus has Down syndrome and who will also need an abortion to protect her own life or health.

The district court did not address this issue, and it has largely been an afterthought so far in this

litigation. But the rules are clear. “[T]he essential holding of Roe forbids a State to interfere

with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would

constitute a threat to her health.” Casey, 505 U.S. at 880. This requirement applies both before

and after viability. Stenberg, 530 U.S. at 930. But the Court has also said that facial attacks are

not the proper procedure for challenging the lack of a health exception: “the proper means to

consider exceptions is by as-applied challenge.” Gonzales, 550 U.S. at 167. An as-applied

challenge “is the proper manner to protect the health of the woman if it can be shown that in

discrete and well-defined instances” her health or life is at risk. Id. “In an as-applied challenge

the nature of the medical risk can be better quantified and balanced than in a facial attack.” Id.

As can the legal risks.9 It is neither a court’s “obligation nor within [its] traditional institutional

role to resolve questions of constitutionality with respect to each potential situation that might

develop.” Id. at 168. The plaintiffs’ facial challenge to the lack of a health exception is

improper.

All told, the plaintiffs have not shown—and have shown no likelihood that they could

prove—that H.B. 214 will impose an undue burden in a large fraction of cases in which it is

relevant. EMW, 978 F.3d at 434; June Medical concurrence, 140 S. Ct. at 2138.

9

The Ohio Supreme Court has explained “in part causation” as focusing on “the actual or true motive” of

the actor. See State Empl. Relations Bd. v. Adena Local Sch. Dist. Bd. of Educ., 613 N.E.2d 605, 615 (Ohio 1993).

No. 18-3329 Preterm-Cleveland v. McCloud Page 22

D.

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State

Department of Health (“PPINK”), 888 F.3d 300, 303 (7th Cir. 2018),10 the Seventh Circuit

considered an Indiana law that would prohibit a doctor from performing an abortion when that

doctor knows that the woman is aborting the pregnancy because she does not want a child that

she knows, from the fetal diagnosis, will be a certain gender, race, color, national origin, or

ancestry, or will have Down syndrome or some other genetically inherited physical or mental

disability. As with H.B. 214 in the present case, the Indiana law did not directly prohibit the

woman from having an abortion for those reasons; it prohibited a doctor from aborting a

pregnancy when that doctor knows the woman’s reason and that reason is that she does not want

the forthcoming child because it will have one of those genetic characteristics. Read the same

way that we read H.B. 214, the Indiana law does not prohibit the woman from deciding based on

race, gender, or disability; it forbids the doctor who would perform her abortion from

effectuating that reason.

But the PPINK opinion construed the Indiana law differently. Apparently presupposing

the doctor’s actual knowledge of the woman’s reason, PPINK declared the law invalid because it

“prohibit[s] abortions prior to viability if the abortion is sought for a particular purpose,” which

is “far greater than a substantial obstacle; [it is an] absolute prohibition.” Id. at 306. That is,

PPINK construed the law as saying that, regardless of whether the woman ever revealed or the

doctor actually knew her reason, the law prohibited her from obtaining an abortion because she

had adopted—in the privacy of her own conscience—one of the enumerated impermissible

reasons: “Nothing in the Fourteenth Amendment or Supreme Court precedent allows the State to

invade this [woman’s personal] privacy realm to examine the underlying basis for [her] decision

to terminate her pregnancy prior to viability.” Id. at 307. PPINK also said that, prior to viability,

the undue-burden test only applied to laws “calculated to inform the women’s free choice, not

hinder it,” id. at 306 (citation omitted); laws that “prohibit any woman from making the ultimate

10

The Supreme Court reversed this case in part, but on other grounds. Box, 139 S. Ct. at 1782 (“Our

opinion . . . expresses no view on the merits of . . . whether Indiana may prohibit the knowing provision of sex-,

race-, and disability-selective abortions by abortion providers.”).

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decision to terminate her pregnancy before viability” are absolutely forbidden, id. at 305 (citation

omitted); id. at 311 (Manion, J., concurring in part and dissenting in part) (“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.”).

The opening paragraph of this subsection, supra, explains why the Indiana law was not a

prohibition but instead was a burden subject to the undue-burden test. This is consistent with the

Supreme Court’s recent cases that universally analyze abortion laws using the undue-burden test.

Certainly, the Court did not construe Gonzales’s prohibition on “intact D&E” as an absolutely

forbidden “prohibition” under a theory that the State may not impose such restrictions before

viability or because that law hindered rather than informed the woman’s choice. Similarly, the

admitting-privileges requirements in Whole Woman’s Health and June Medical did not inform

the woman’s choice but the Court nonetheless applied the undue-burden test. Moreover, for the

same reasons presented in Section IV of this opinion, the right to abortion, even before viability,

is not absolute, viability is not germane to the analysis of this law, and the right at issue is not

even the right to obtain an abortion. For these reasons, we must respectfully disagree with

PPINK.

VI.

As we said in the forgoing section, the undue-burden test as articulated by the Chief

Justice in his June Medical concurrence is the controlling law of the Sixth Circuit and nothing in

this section alters or diminishes that statement in any way. However, because the June Medical

plurality pressed an alternative undue-burden test, because the unusual nature of H.B. 214 might

arguably fit an alternative case (Gonzales), and because the large-fraction test has proven

difficult in practice, those few of us who join this section thought it worthwhile to show that H.B.

214 would not pose an undue burden under any test that the Court could conceivably apply.

We recognize that this section is little more than a separate concurrence and, being dicta,

creates no controlling law. See Richmond Health Facilities v. Nichols, 811 F.3d 192, 201 n.8

(6th Cir. 2016) (quoting Black’s Law Dictionary, 10th ed. 2014, for the definition of dicta). But

No. 18-3329 Preterm-Cleveland v. McCloud Page 24

the fact that dicta is not binding, “does not mean that the dicta is incorrect.” Kelly Servs., Inc. v.

Creative Harbor, LLC, 846 F.3d 857, 875 (6th Cir. 2017) (quotation marks and citations

omitted). Going one step further, the point is that even if the Supreme Court were to overrule

EMW, 978 F.3d at 433-34, we would not find it necessary to reconsider the constitutionality of

H.B. 214.

A.

The June Medical plurality stated the undue-burden test in the usual way: a law is invalid

if it has “the purpose or effect of presenting a substantial obstacle to a woman seeking an

abortion.” June Med. Servs., 140 S. Ct. at 2120 (plurality) (quotation marks and citation

omitted). But when deciding the substantial-obstacle question, it said that courts must consider

the burdens and benefits “together” by “weigh[ing] the asserted benefits of the law against the

burdens it imposed on abortion access” and finding a “substantial obstacle” whenever “the

balance tip[s]” towards the burdens, regardless of the objective severity or substantiality of the

burdens. Id. (quotation marks and citation omitted).

The June Medical plurality determined that the principal burden posed by the admitting-

privileges requirement was that it would force certain doctors and clinics out of business, leading

to a “drastic reduction in the number and geographic distribution of abortion providers.” Id. at

2122 (quoting the lower court); 2129. It also stated four associated, lesser burdens: longer

waiting times, increased crowding, increased risk of complications during the procedure due to

the delays, and increased driving distances. Id. at 2130 (quotation marks and citations omitted).

It then turned its attention “to the law’s asserted benefits,” id., and determined that the admitting-

privileges requirement did not further the legitimate interest in protecting women’s health and

welfare, id. at 2131-32, so it “offer[ed] no significant health-related benefits,” id. at 2132.

Therefore, the June Medical plurality concluded that, because the burdens were substantial and

the benefits were insignificant (virtually nil), the law imposed an undue burden. Id.

Turning back to the present case, the same two burdens continue to apply. H.B. 214

prevents a woman from having a full and open conversation with her doctor, so that she can have

her abortion performed by a doctor who knows that she does not want a child with Down

No. 18-3329 Preterm-Cleveland v. McCloud Page 25

syndrome and is having the abortion for that reason. And should she reveal this information to

the preferred doctor anyway, it would force her to secure a different doctor who is unaware that

that is her reason. As already shown, these are not substantial burdens. Even so, the question is

whether these burdens would nonetheless outweigh the law’s asserted benefits. They would not.

H.B. 214 furthers three legitimate state interests. The first is the protection of the Down

syndrome community from the stigma associated with the practice of Down-syndrome-selective

abortions. The State produced evidence that, in the United States, two thirds of the pregnancies

with a fetal diagnosis of Down syndrome are aborted—the percentages are much higher in some

other countries—making it one of the traits most commonly targeted for abortion. The State

explains that, when unborn children exhibiting a certain trait are targeted for abortion, that sends

a message to people living with that trait that they are not as valuable as others. Even though

H.B. 214 does not prohibit Down-syndrome-selective abortions and might not actually reduce

the incidence of such abortions, by prohibiting doctors from knowingly participating in this

practice, it sends a resounding message condemning the practice of selective abortions.

The State’s second interest is in protecting pregnant women and their families from

coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses. Because some

in the medical community believe that Down syndrome can and should be eradicated through a

systemic abortion program, a woman with a fetal diagnosis of Down syndrome might face

pressure from the doctor to abort that pregnancy. Based on the limited record here, if we accept

that there are some doctors willing to exert such pressure, then H.B. 214 certainly furthers this

interest.

The third interest is in protecting the integrity and ethics of the medical profession by

preventing doctors from becoming knowing participants in Down-syndrome-selective abortions.

By involving the doctor in her personal decision to abort her pregnancy because the forthcoming

child would be born with Down syndrome, the woman places the doctor in a position of

conflicted medical, legal, and ethical duties. Ordinarily, under basic medical ethics, doctors are

expected to respond to a diagnosis of Down syndrome with care and healing. In this situation,

however, those doctors who would do so are instead being asked to act directly against the

No. 18-3329 Preterm-Cleveland v. McCloud Page 26

physical life of the fetus based solely on the fact that the forthcoming child would have Down

syndrome.

H.B. 214 furthers each of these legitimate interests, thereby producing the benefits the

State intended. Given the minor burdens imposed by H.B. 214, any of these benefits alone

would be enough to tip the balance away from a “substantial obstacle” and towards an incidental

and acceptable burden. Under the June Medical plurality’s balancing, the three together are

more than enough to overcome the burdens and uphold H.B. 214.

B.

In Gonzales, the Court considered a challenge to a federal law that banned one method of

partial-birth abortion (“intact D&E”) while permitting alternative methods (“standard D&E” or

pre-abortion fetal demise). Gonzales, 550 U.S. at 150-54. The Court applied the undue-burden

test, asserting that the law would be invalid “if its purpose or effect [were] to place a substantial

obstacle in the path of a woman seeking an abortion.” Id. at 156 (citation omitted). The State

asserted two interests: protecting the “dignity of human life,” id. at 157, and “protecting the

integrity and ethics of the medical profession,” id. (citation omitted). The Court held that both

were “legitimate interests” and that the law furthered those interests. Id. at 158. The plaintiff

doctors and clinics asserted two burdens imposed by the unavailability of “intact D&E”: it would

subject women to significant health risks and, to a lesser extent, would be inconvenient for the

doctors. Id. The Court acknowledged that the law would indeed be invalid “if it subjected

women to significant health risks,” id. at 161 (citation omitted; quotation and editorial marks

omitted), but—finding the claims about the health risks scientifically disputed—the Court held

that such “medical uncertainty” was insufficient to invalidate the law, id. at 164.

Going one step further, the Court upheld the law’s ban on “intact D&E” because

acceptable alternatives were readily available, emphasizing that the law “allows, among other

means, a commonly used and generally accepted method [i.e., standard D&E], so it does not

construct a substantial obstacle to the abortion right.” Id. at 165. “Physicians are not entitled to

ignore regulations that direct them to use reasonable alternative procedures. The law need not

give abortion doctors unfettered choice in the course of their medical practice, nor should it

No. 18-3329 Preterm-Cleveland v. McCloud Page 27

elevate their status above other physicians in the medical community.” Id. at 163. In closing,

the Court rejected the idea that “mere convenience” would “suffice to displace” other standard

and available options. Id. at 166. In sum, this part of the test concerned the alternatives to the

restrictions.

Here, considered from the plaintiffs’ perspective, H.B. 214 prevents a woman from

informing the doctor who will perform her abortion that she does not want a child with Down

syndrome and is having the abortion for that reason. To be sure, H.B. 214 does not do so

expressly. By its plain terms it merely prohibits the doctor from knowingly acting to further that

reasoning. But, the plaintiffs claim, the effect is to deter the woman from sharing her beliefs and

motive with that doctor. The plaintiffs assert that her compliance with H.B. 214 will impose two

burdens on such a woman: it will prevent her from having a full, open, and honest conversation

with the doctor who will perform her abortion; and it may force her to engage in “doctor

shopping” to find a doctor who is unaware of her reason for seeking the abortion.

Under the first burden, the woman cannot have a full, open, and honest conversation

(A) with the abortion doctor (B) about the reason for the abortion. That is, she cannot have both

A and B together. Under the analysis in Gonzales, we would consider reasonable alternatives.

An alternative here gives that woman A and B separately. That is, she can have a full, open, and

honest conversation with the doctor who will perform her abortion about anything else, including

every other aspect of the procedure or even any other (non-Down-syndrome-based) reason for

her having the abortion. And she can have a full, open, and honest conversation about her

Down-syndrome-based opinions and reason for the abortion with any other person, including her

family practitioner, obstetrician-gynecologist (OB/GYN), maternal-fetal medicine (MFM)

specialist, genetic counselor, therapist, social worker, minister, friend, neighbor, and family

members. This is a reasonable alternative that necessarily defeats any possibility of a substantial

obstacle.

The other asserted burden would arise if she had to go “doctor shopping” for a doctor

who was unaware of her reason for the abortion. Obviously, this is a little convoluted, because,

if the first doctor never learned of her Down-syndrome-based reason, then they could proceed

with the abortion regardless of her reason. This burden would only arise if the doctor learned of

No. 18-3329 Preterm-Cleveland v. McCloud Page 28

her Down-syndrome-based reason, forcing that doctor to refuse to perform the abortion, in order

to comply with H.B. 214. The woman would then need to secure another doctor to perform the

abortion, one who does not know her opinions and reason. While proceeding to a second doctor

might cause a delay or incur some travel, the Court has established that those are not necessarily

substantial obstacles. We can infer that, under this approach, the alternatives are presumptively

reasonable.

In Gonzales, 550 U.S. at 164, the prohibition on “intact D&E” was permissible because a

woman could still obtain an abortion through an acceptable alternative method. Here, the

prohibition on a doctor’s acting with certain knowledge (i.e., knows that the woman is having the

abortion because she does not want a child with Down syndrome) is permissible because the

woman can obtain an abortion through an acceptable alternative approach. If we were to track

the Gonzales analysis here, H.B. 214 would survive on a “reasonable alternatives” basis.

C.

Finally, a word about the “large fraction test,” which the Court uses for facial challenges

to abortion laws. The large-fraction test holds that if a law imposes an undue burden in a “large

fraction” of cases in which it is “relevant”—meaning for a large fraction of “those women for

whom the [law] is an actual rather than an irrelevant restriction”—then the law is invalid and

must be struck down, even if it would not pose an undue burden in some (small fraction of)

cases. June Med. Servs., 140 S. Ct. at 2132-33 (plurality) (emphasizing that this is not “not an

‘every woman’ standard”); Whole Woman’s Health, 136 S. Ct. at 2320; see also Gonzales, 550

U.S. at 167-68.

The obvious enigma is that the women (putative plaintiffs) under consideration in this

case might fall into a “small fraction” of cases for which H.B. 214 poses no undue burden, but

H.B. 214 could still be invalid on its face and struck down entirely if it were to pose an undue

burden on a large fraction of all of the relevant women in Ohio. The Court, however, has not

been clear about how to define the numerator and denominator for the fraction, about what

qualifies as a fraction that is “large,” or about whether it is a percentage or a fractional number

possibly larger than one. See, e.g., June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 813-14 (5th

No. 18-3329 Preterm-Cleveland v. McCloud Page 29

Cir. 2018), rev’d by June Med. Servs., 140 S. Ct. at 2103; A Woman's Choice-E. Side Women’s

Clinic v. Newman, 305 F.3d 684, 699 (7th Cir. 2002) (Coffey, J., concurring) (“The Casey

plurality did not explain, and thus we refuse to peer into the dark abyss of speculation in an

attempt to determine at precisely what point a fractional part of a group becomes an

impermissibly ‘large fraction’ and a statute becomes unduly burdensome.”). Certainly, no courts

have claimed that it is easy to apply. See, e.g., Planned Parenthood of Ark. & E. Okla. v. Jegley,

864 F.3d 953, 957-60 (8th Cir. 2017); Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361,

370, 373-74 (6th Cir. 2006). And the Supreme Court has been forthcoming about its own

difficulties with applying it. See, e.g., June Med. Servs., 140 S. Ct. at 2176 (Gorsuch, J.,

dissenting) (exclaiming that “this circular test is unlike anything we apply to facial challenges

anywhere else”); Whole Woman’s Health, 136 S. Ct. at 2343 n.11 (Alito, J., dissenting, joined by

Roberts, C.J., and Thomas, J.) (“I must confess that I do not understand this [application of this

test].”); Gonzales, 550 U.S. at 188 n.10 (Ginsburg, J., dissenting, joined by Stevens, Souter,

Breyer, JJ.) (“There is, in short, no fraction because the numerator and denominator are the

same. . . . Perhaps for this reason, in mandating safeguards for women’s health, we have never

before invoked the ‘large fraction’ test.”).

Although our precedent includes mathematical applications, see Taft, 468 F.3d at 372-73

(holding that 12.5% is not a large fraction), our commonplace approach has been to treat the

large-fraction test as “more conceptual than mathematical,” id. at 374; see also Baird, 438 F.3d

at 606; Voinovich, 130 F.3d at 193-97. That is consistent with the Supreme Court’s first

application of the test upon its creation in Casey, 505 U.S. at 892-95, where the Court did not

conduct a mathematical determination of the fraction but relied “on expert testimony, empirical

studies, and common sense,” id. at 925 (Blackmun, J., concurring in part, and dissenting in part).

Under this common sense or conceptual approach, we can conservatively accept that

H.B. 214 is relevant to any woman who knows that her fetus likely has Down syndrome, wants

to abort the pregnancy because she does not want that child with Down syndrome, and wants the

abortion performed by a doctor who knows that is her reason for having the abortion. As

demonstrated, causing any such woman to forgo this one specific doctor is not a substantial

obstacle on her right to choose or obtain an abortion. Correspondingly, requiring a doctor who

No. 18-3329 Preterm-Cleveland v. McCloud Page 30

has learned that reason to disqualify him- or herself from performing the abortion on that

woman, and thereby necessitate that she secure a different doctor, is not a substantial obstacle on

the woman’s ability to choose or obtain an abortion. Therefore, H.B. 214 does not create a

substantial obstacle to a woman’s ability to choose or obtain an abortion in any case, much less

in a large fraction of relevant cases.

VII.

We hold that the restrictions imposed, or burdens created, by H.B. 214 do not create a

substantial obstacle to a woman’s ability to choose or obtain an abortion. Moreover, those

restrictions are reasonably related to, and further, Ohio’s legitimate interests. Therefore, H.B.

214 is valid in all conceivable cases and the plaintiffs cannot succeed on the merits of their

claim.

For the foregoing reasons, we REVERSE the order of the district court granting the

preliminary injunction that was requested by the plaintiffs.

No. 18-3329 Preterm-Cleveland v. McCloud Page 31

_________________

CONCURRENCE

_________________

SUTTON, Circuit Judge, concurring. I join Judge Batchelder’s opinion in full and offer a

dictum or two.

Abortion contests of this sort are not going away. And we should be grateful—or at least

appreciate what the quandary says about our country. Complete elimination of the debate in one

direction—that only the public, never the woman, has a say in the matter—shortchanges some

interests. Complete elimination of the debate in the other direction—that only the woman, never

the public, has a say in the matter—shortchanges other interests. A healthy society should have

free rein to navigate between these poles. A mark of a healthy society, it might even be said, is

that it remains relentlessly ill at ease about the ethical, moral, medical, liberty, and faith-based

considerations that inform these debates.

Which brings us to questions presented over and over and over again: How to set the

balance between competing perspectives? Who decides where to draw the line? In 1973, the

federal courts assumed most of the line-drawing power in the area, barring most state limitations

on first-trimester abortions. See Roe v. Wade, 410 U.S. 113 (1973). In 1992, the federal courts

eliminated the bright-line of Roe and replaced it with a less categorical approach. The

Fourteenth Amendment’s Due Process Clause, the Court said, prohibits a government from

placing an “undue burden” on a woman’s right to procure an abortion of a nonviable fetus.

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (plurality).

What have been the effects of this centralization of power? Has it left the competing

sides to the debate content or more fearful of what’s next? Has judicial authority over the issue

been healthy for the federal courts? More than all that, has it worked? Has our jurisprudence

facilitated more compromise and thus more settled law?

Today’s case, it seems to me, is Exhibit A in a proof that federal judicial authority over

the issue has not been good for the federal courts or for increased stability over this difficult area

No. 18-3329 Preterm-Cleveland v. McCloud Page 32

of law. How did it happen that an anti-eugenics law is not the kind of law that reasonable people

could compromise over in the context of broader debates about abortion policy?

For my part, I do not find this case difficult as a matter of federal constitutional law. The

United States Supreme Court has never considered an anti-eugenics statute before. Nothing in

its abortion decisions indicates that a State may not ban doctors from knowingly performing an

abortion premised on the undesirability of the disability, sex, or race of the fetus. The question is

not whether the ban counts as an undue burden. The question is whether the undue burden test

applies at all. I see no reason that it does. “[W]e don’t read precedents like statutes,” Herr v.

U.S. Forest Serv., 803 F.3d 809, 819 (6th Cir. 2015), least of all constitutional precedents.

Casey, like all judicial opinions, resolved only “the situations presented for decision,” and the

Court has never considered the validity of an anti-eugenics statute. Planned Parenthood of Ind.

& Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 917 F.3d 532, 536 (7th Cir. 2018)

(Easterbrook, J., dissenting from the denial of rehearing en banc). We should “not impute to the

Justices decisions they have not made about problems they have not faced.” Id.

Even if the undue burden framework applies to this case, I fail to see how it is an undue

burden to prohibit expectant mothers from telling the doctor performing the abortion the reason

for their decision: a Down syndrome diagnosis. The Ohio law makes the decision a private

one—and leaves it there, perhaps just where it should be left. At the same time, it prevents the

medical profession in particular and society in general from knowingly casting aspersions on

individuals with Down syndrome—or, worst of all, celebrating the number of Down syndrome

births averted. Ohio is free to reject the policy approach of some European countries to the

issue. David A. Savitz, How Far Can Prenatal Screening Go in Preventing Birth Defects?,

152 J. of Pediatrics 3, 3–4 (2008); see also Janet L. Dolgin & Lois L. Shepherd, Bioethics and

the Law 210 (4th ed. 2018). More to the legal point at hand, the Due Process Clause of the

United States Constitution does not take a stand on this social policy debate. Ohio does not have

to be Iceland.

The National Constitution permits States to convey their interest in the dignity of all

human beings in all manner of ways. Most basic of all, a State may seek to avoid the stigma that

No. 18-3329 Preterm-Cleveland v. McCloud Page 33

comes with publicly acknowledged discrimination against the born and the unborn based on

disability, sex, and race.

The Pennsylvania law at issue in Casey, notably, included an anti-eugenics provision, one

that banned abortions based on sex selection. 18 Pa. Cons. Stat. Ann. § 3204(c). If the mother’s

physician performed such an abortion, the physician had performed an “[un]necessary” abortion

and had committed a “felony of the third degree.” Id. § 3204(c)–(d). Ohio’s law, H.B. 214,

likewise says a physician who knowingly performs an abortion due to a Down syndrome

diagnosis has committed a felony of the fourth degree. O.R.C. §§ 2919.10(C); 2929.14(A)(4).

The sex selection provision in Casey went unchallenged, see Lynne Marie Kohm, Sex Selection

Abortion and the Boomerang Effect of A Woman’s Right to Choose: A Paradox of the Skeptics,

4 Wm. & Mary J. Women & L. 91, 119 n.124 (1997), and thus remains unresolved. Unless, that

is, the claimants somehow won the challenge without making it. The Supreme Court’s silence

on the matter means that the Court has never rendered States “powerless to prevent abortions

designed to choose the sex, race, and other attributes of children.” See Planned Parenthood of

Ind. & Ky., 917 F.3d at 536 (Easterbrook, J., dissenting from the denial of rehearing en banc).

That’s why the validity of a law like Ohio’s “remains an open question.” Box v. Planned

Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1792 (2019) (Thomas, J., concurring).

Assuming still more judicial responsibility over so much abortion policy comes with

terrain-altering costs to the judiciary. An independent judiciary has always been crucial to

America’s constitutional order. But a politicized judiciary cannot be an independent judiciary.

The more the judicial branch enumerates our country’s policies in areas of unenumerated liberty

rights over which the people have legitimate disagreements, the more it becomes a new source of

power—an allocation of responsibility that comes with the worst features of gerrymandering: a

warping of democracy and a perceived manipulation of the decision-making process. Any effort

to insulate such power from the political fray is not likely to last long or end well. Far better, in

my view, to give States like Ohio more latitude, not less, to weigh and decide complex questions

about abortion policy.

At the outset, I said that debates about abortion policy will not go away. That’s not quite

true. Every time the federal courts leave an issue of abortion policy to local decision-making,

No. 18-3329 Preterm-Cleveland v. McCloud Page 34

they create the possibility for compromise at the local level. The topic of today’s abortion

regulation may not lend itself to a national compromise, but it does lend itself to local ones,

which often are more stable, less political, more fair, sometimes most lasting.

A long-ago example from Ohio, quaint to modern ears at many levels, illustrates the

point. For the first half of the twentieth century, Ohio prohibited the public transportation of

school children to religious schools, O.R.C. § 3327.01; Honohan v. Holt, 244 N.E.2d 537, 539

(Ohio Ct. Com. Pl. 1968), and the use of contraception by unmarried couples, O.R.C. § 2905.34

(1963 Supp.); City of Toledo v. Kohlhofer, 122 N.E.2d 20, 23 (Ohio Ct. App. 1954). But that

changed in the spring and summer of 1965, when bills repealing both bans passed with wide

margins. 131 Journal of the Senate, 116th General Assembly of Ohio, 728 (June 28, 1965)

(parochial busing: 24 yea – 6 nay); 131 Journal of the House of Representatives, 116th General

Assembly of Ohio, 1809–1810 (July 29, 1965) (parochial busing: 86 yea – 45 nay); 131 Journal

of the House of Representatives, 116th General Assembly of Ohio, 486–87 (April 13, 1965)

(contraceptive bill: 116 yea – 10 nay); 131 Journal of the Senate, 116th General Assembly of

Ohio, 698 (June 23, 1965) (contraceptive bill: 26 yea – 3 nay).

Compromise between competing interest groups appears to have been the key. On one

side, “it was the Catholics who pressed hardest for the [school busing] bill’s passage and nursed

it through the legislature.” William Fulwider, Discrimination Ban in Busing Law Studied, The

Columbus Dispatch 22 (September 5, 1965); Honohan, 244 N.E. 2d at 545 (dissent). On the

other side, it was the lack of opposition by “sectarian groups” that enabled the contraception bill

to “continue its progress through the legislature.” Ned Stout, Bill Would Legalize Birth Control

Advice, The Columbus Dispatch 16B (March 24, 1965). When the federal courts let local

political processes play out, Ohioans ended up with a little give and a little take that satisfied

supporters of open access to contraceptives and religious-school busing alike. The Ohio

compromise over these issues in the 1960s was not a compromise for every State, and it did not

turn on a principle that the U.S. Constitution had created at the time. Compare Griswold v.

Connecticut, 381 U.S. 479, 485–86 (1965) (establishing that a constitutional right to privacy

protects a married couple’s decision to use contraceptives), with Eisenstadt v. Baird, 405 U.S.

No. 18-3329 Preterm-Cleveland v. McCloud Page 35

438, 453 (1972) (extending the right to unmarried individuals). But it likely led the two sides of

the debate to trust each other when new conflicts arose.

Keep in mind what this compromise did and did not mean. It did not require the

competing camps to agree that the other side was right; it just required them to stop opposing the

competing position with every ounce of political energy they could muster.

Local lessons can be national lessons. The more the federal courts do when it comes to

abortion policy, and the longer they do it, the less reason there is for compromise at the local

level. That has not been good for the federal courts or for obtaining more stable law over an

issue unlikely to go away anytime soon.

No. 18-3329 Preterm-Cleveland v. McCloud Page 36

_________________

CONCURRENCE

_________________

GRIFFIN, Circuit Judge, concurring.

I join the majority opinion. I write separately to emphasize Ohio’s compelling state

interest in prohibiting its physicians from knowingly engaging in the practice of eugenics. In this

regard, I echo the conclusion reached by Judge Batchelder in her panel dissent:

In Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780

(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.

Preterm-Cleveland v. Himes, 940 F.3d 318, 325 (6th Cir. 2019) (Batchelder, J., dissenting),

vacated, 944 F.3d 630 (6th Cir. 2019) (en banc).

Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did

not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder

millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a

motivation for many of the selective abortions that occur today.

Coined in 1883 by British statistician Francis Galton, “eugenics” is “the science of

improving stock through all influences that tend in however remote a degree to give to the more

suitable races or strains of blood a better chance of prevailing speedily over the less suitable than

they otherwise would have.” Box, 139 S. Ct. at 1784 (2019) (Thomas, J., concurring) (internal

quotation marks omitted). “[B]y promoting reproduction between people with desirable qualities

and inhibiting reproduction of the unfit,” the theory goes, “man could improve society by doing

providently, quickly, and kindly what Nature does blindly, slowly, and ruthlessly.” Id.

(alterations and internal quotation marks omitted).

By the 1920s and 1930s, eugenics became a popular movement in Europe and the United

States. The “science” of “eugenics was taught at 376 [American] universities and colleges,”

No. 18-3329 Preterm-Cleveland v. McCloud Page 37

including Harvard. Id. at 1785. As Judge Sutton has explained, “[m]any leading figures of the

day—Theodore Roosevelt, John D. Rockefeller, Mrs. Mary Harriman, David Starr Jordan (a

biologist and the first president of Stanford University), to name some—were fervent

eugenicists, putting their money, their power, their time, and their research behind the effort.”

Jeffrey S. Sutton, 51 Imperfect Solutions: States And The Making of American Constitutional

Law, 87 (2018). Additionally, for a time, Planned Parenthood’s founder—Margaret Sanger—

was sympathetic to some aspects of the eugenics movement,1 which included supporting the

Supreme Court’s infamous Buck v. Bell decision. 274 U.S. 200 (1927).2

In Buck v. Bell, the Supreme Court rejected a Fourteenth Amendment Due Process and

Equal Protection challenge to Virginia’s involuntary sterilization law. Id. at 205–06. In

upholding the forced sterilization of plaintiff Carrie Buck, the Supreme Court accepted and

sanctioned the inhumane, discriminatory, and misguided principles of eugenics codified by the

Commonwealth of Virginia:

The attack is not upon the procedure but upon the substantive law. It seems to be

contended that in no circumstances could such an order be justified. It certainly is

contended that the order cannot be justified upon the existing grounds. The

judgment finds the facts that have been recited and that Carrie Buck ‘is the

probable potential parent of socially inadequate offspring, likewise afflicted, that

she may be sexually sterilized without detriment to her general health and that her

welfare and that of society will be promoted by her sterilization,’ and thereupon

makes the order. In view of the general declarations of the Legislature and the

specific findings of the Court obviously we cannot say as matter of law that the

grounds do not exist, and if they exist they justify the result. We have seen more

than once that the public welfare may call upon the best citizens for their lives. It

would be strange if it could not call upon those who already sap the strength of

the State for these lesser sacrifices, often not felt to be such by those concerned, in

order to prevent our being swamped with incompetence. It is better for all the

1

Planned Parenthood, Margaret Sanger – Our Founder 7–8 (June 2016), available

at https://www.plannedparenthood.org/uploads/filer_public/b5/d4/b5d47c32-89f2-45d9-b28c-243cb85f3f55/sanger_

fact_sheet_oct_2016.pdf; Planned Parenthood, Opposition Claims About Margaret Sanger 3–4 (Oct. 2016),

available at https://www.plannedparenthood.org/uploads/filer_public/37/fd/37fdc7b6-de5f-4d22-8c05-

9568268e92d8/sanger_opposition_claims_fact_sheet_2016.pdf.

2

Planned Parenthood recently “denounce[d] [Sanger’s] endorsement of . . . Buck v. Bell . . . as well as her

involvement with the American eugenics movement and her adherence to some of its principles and values.”

Margaret Sanger – Our Founder 8; Opposition Claims About Margaret Sanger 4 (“Planned Parenthood

acknowledges [that Sanger’s views on eugenics had] . . . major flaws . . . and . . . believe[s] that they are wrong.”).

No. 18-3329 Preterm-Cleveland v. McCloud Page 38

world, if instead of waiting to execute degenerate offspring for crime, or to let

them starve for their imbecility, society can prevent those who are manifestly

unfit from continuing their kind. The principle that sustains compulsory

vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v.

Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765

[(1905)]. Three generations of imbeciles are enough.

Id. at 207.

Following Nazi Germany’s horrific implementation of eugenics to its natural conclusion,

the eugenics movement lost its popularity. See Sutton, supra, at 120. Tragically, however, the

practice continues today with modern-day abortions. Specifically, the selective abortion of

unborn babies who are deemed “unfit” or “undesirable” is becoming increasingly common.

Consider the abortion practices in Asia and India as detailed by Justice Thomas:

In Asia, widespread sex-selective abortions have led to as many as 160 million

“missing” women—more than the entire female population of the United States.

See M. Hvistendahl, Unnatural Selection: Choosing Boys Over Girls, and the

Consequences of a World Full of Men 5–6 (2011); see also Kalantry, How To Fix

India’s Sex-Selection Problem, N. Y. Times, Int’l ed., July 28, 2017, p. 9 (“Over

the course of several decades, 300,000 to 700,000 female fetuses were selectively

aborted in India each year. Today there are about 50 million more men than

women in the country”).

Box, 139 S. Ct. at 1791. Moreover, “[i]n Iceland, the abortion rate for children diagnosed with

Down syndrome in utero approaches 100%”; and other European countries also have shockingly

high rates. Id. at 1790.

In her panel dissent, Judge Batchelder correctly concluded that “Ohio enacted the

Antidiscrimination Law, H.B. 214, to counteract . . . eugenicist practices concerning the prenatal

Down Syndrome population.” Preterm-Cleveland, 940 F.3d at 326 (Batchelder, J., dissenting).

Ohio’s anti-eugenicist goals align with our now-enlightened national policy of protecting and

respecting people with disabilities. See generally Americans with Disabilities Act of 1990,

Pub. L. No. 101-336, 104 Stat. 327; Individuals with Disabilities Education Improvement Act of

2004, Pub. L. No 108-446, 118 Stat. 2647.

Today’s en banc majority opinion persuasively holds that the Ohio statute does not

prevent women from undergoing abortions; rather, it prohibits state-regulated physicians from

No. 18-3329 Preterm-Cleveland v. McCloud Page 39

knowingly carrying out abortions for eugenic reasons. Specifically, the law prohibits Ohio

doctors from performing an abortion when the doctor knows one or more of the pregnant

woman’s reasons for “seeking the abortion, in whole or in part, [is] because” the unborn child

has or might have Down syndrome. O.R.C. § 2919.10(B). Thus, it promotes Ohio’s compelling

state interest of proscribing complicity by its physicians in the discriminatory and misguided

practice of eugenics.

As Justice Thomas stated in Box, “[w]hatever else might be said about Casey, it did not

decide whether the Constitution requires States to allow eugenic abortions.” 139 S. Ct. at 1792.

“I would apply that reasoning here to uphold Ohio H.B. 214.” Preterm-Cleveland, 940 F.3d at

326 (Batchelder, J., dissenting).

No. 18-3329 Preterm-Cleveland v. McCloud Page 40

_________________

CONCURRENCE

_________________

JOHN K. BUSH, Circuit Judge, concurring. As the majority explains, H.B. 214 does not

impose an undue burden on those who choose to have an abortion because of a fetal-Down-

syndrome diagnosis. It does not ban such abortions. The majority says that a ban would be a

different case, and that is correct insofar as a ban would require different analysis. But the result

would be the same. I write separately to explain why that result would be consistent with the

Supreme Court’s abortion precedents and the Fourteenth Amendment’s original meaning.1

When facing a federal constitutional issue not previously decided in our circuit, our

responsibility as intermediate appellate judges is clear. We should first ask whether a holding of

the Supreme Court has “direct application in a case.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989). If so, the inquiry ends there. But when a case presents

an issue of first impression that no holding of the Supreme Court can resolve, we must look to

“[t]he ultimate touchstone of constitutionality”: the Constitution itself. Graves v. O’Keefe,

306 U.S. 466, 491–92 (1939) (Frankfurter, J., concurring). The question whether “the

Constitution requires states to allow eugenic abortions” is such an issue. Box v. Planned

Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1792 (2019) (Thomas, J., concurring).

Prohibiting abortion based on a particular genetic condition furthers a wholly distinct

interest—preventing discrimination—from the interests in unborn life and women’s health that

the Supreme Court developed the undue-burden standard to address. Like Judge Sutton, I see no

reason why the undue-burden test applies to the type of law at issue here. So, in the absence of

Supreme Court guidance, we should look to the original meaning of the Fourteenth Amendment

to decide this case. That meaning is clear: the Fourteenth Amendment’s Due Process Clause, as

originally understood, does not prohibit laws that protect unborn life with Down syndrome. The

1

This is no academic exercise. The Seventh and Eighth Circuits have held similar laws to be bans and

found that they are unconstitutional when viewed in that light. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of

Ind. State Dep’t of Health, 888 F.3d 300, 312 (7th Cir. 2018), rev’d in part on other grounds sub nom. Box v.

Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019); Little Rock Fam. Plan. v. Rutledge, 984 F.3d 682,

690 (8th Cir. 2021). I write to disagree with their analysis.

No. 18-3329 Preterm-Cleveland v. McCloud Page 41

two tests that the Supreme Court often applies in substantive due process cases—history-and-

tradition analysis and interest balancing—accord with that conclusion.

I.

To interpret the Constitution, we look to its original meaning. Originalism “follows

inexorably” from our commitment to a written Constitution. Randy Barnett, An Originalism for

Nonoriginalists, 45 Loy. Univ. L. Rev. 611, 636 (1999). The natural reading of a legal

document, constitution or not, presupposes a fixed meaning of the words in the document at the

time they were communicated. Lawrence Solum, The Fixation Thesis: The Role of Historical

Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 1–2 (2015). Although works of literature

and other creative endeavors may be interpreted to have multiple meanings that are fluid over

time, that is not the way we read legal texts. See Richard Kay, Adherence to Original Intentions

in Constitutional Adjudication: Three Objections and Responses, 82 Nw. L. Rev. 226, 238–39

(1988). Laws communicate unchanging directives so that people can rely on them and order

their lives accordingly. Originalism applies that understanding to the Constitution.

Applying the Constitution’s fixed meaning is the only way to respect “the consent of the

governed with which the actions of the governors must be squared.” Edwin Meese III, The Law

of the Constitution, 61 Tul. L. Rev. 979, 986 (1986). If the Constitution’s meaning changes

according to the whims of unelected judges, then it becomes a thoroughly anti-democratic

document. Instead of the People having control over the constitutional amendment process

under Article V, such power devolves to the judiciary. That dangerous result allows courts to

make constitutional changes that the People have declined to adopt. Even if a change in

constitutional meaning accords with the majority of popular opinion, that condition does not

warrant judicial intervention to “amend” the Constitution through interpretation according to that

popular will. After all, a democratic society “does not, by and large, need constitutional

guarantees to ensure that its laws will reflect ‘current values.’ Elections take care of that quite

well.” Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862 (1989).

Instead, we need a constitution passed through supermajoritarian processes to protect enduring

No. 18-3329 Preterm-Cleveland v. McCloud Page 42

values so that the fleeting passions of temporary majorities, whether in the electorate or on the

courts, cannot alter the rights and structures that We the People enshrined as our highest law.2

With these principles in mind, how do we balance our role as lower court judges with our

duty to apply the Constitution’s original meaning? First, of course, if a holding of the Supreme

Court directly applies to a case, we follow it. Rodriguez, 490 U.S. at 484. In so doing, we

cannot apply a “cramped reading” of the precedent that would “functionally overrule” it.

Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir. 2020). Instead, we must apply

precedent “neither narrowly nor liberally—only faithfully.” United States v. Johnson, 921 F.3d

991, 1001 (11th Cir. 2019) (en banc).

But “only holdings are binding, not dicta.” Wright v. Spaulding, 939 F.3d 695, 700 (6th

Cir. 2019). The holding of a case includes only the propositions that are necessarily decided to

support the judgment based on the facts of that case. Id. at 701. All else is dictum. See id. (“[A]

conclusion that does nothing to determine the outcome is dictum and has no binding force.”).3

As Chief Justice Marshall explained, “It is a maxim not to be disregarded, that general

expressions, in every opinion, are to be taken in connection with the case in which those

expressions are used. If they go beyond the case, they may be respected, but ought not to control

the judgment in a subsequent suit when the very point is presented for decision.” Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

2

Recent scholarship has also shown persuasively that originalism is our current law. See William Baude,

Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2408 (2015) (answering the titular question in the affirmative);

Stephen Sachs, Originalism as a Theory of Legal Change, 38 Harv. J. L. & Pub. Pol’y 817, 837–38 (2015) (noting

that “courts and officials labor mightily to avoid anything that smacks of open rebellion against the text or its

original meaning, however understood”). Perhaps for that reason, originalism is the only mode of interpretation that

the Supreme Court has specifically endorsed. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1395–97 (2020);

Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019); Crawford v. Washington, 541 U.S. 36, 60–61 (2004).

3

One dissent cites my above reasoning to contend that it renders Part V.A of the majority, where the

opinion states the correct formulation of the undue burden test, dicta. Moore dissent at 60. Of course, our decisions

often “gratuitously recite standards of law that are not in dispute and have no effect on the judgment,” such as when

noting standards of review or, as here, the test that applies to a statute that would be constitutional under any

available test. See Leval, infra, at 1267. EMW Women’s Surgical Center, P.S.C. v. Friedlander already answered

the question that June Medical Services v. Russo raised about the correct formulation of the undue burden standard.

978 F.3d 418, 431 (6th Cir. 2020). That that determination is not necessary to my decision here does not

change EMW’s status as the law of our circuit. Ironically, though, three of my colleagues choose not to join Part

VI—leaving it a plurality—which means that the determination of the correct test is necessary to the holding that a

majority of judges join. See Kethledge concurrence.

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When no holding of the Supreme Court can decide a question, as in the case before us,

our duty to “interpret the Constitution in light of its text, structure, and original understanding”

takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring

in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta,

81 N.Y.U. L. Rev. 1249, 1274 (2006) (“The Supreme Court’s dicta are not law. The issues so

addressed remain unadjudicated. When an inferior court has such an issue before it, it may not

treat the Supreme Court’s dictum as dispositive.” (emphasis added)).4 And if it is dubious

whether a precedent “is correct as an original matter,” we should “tread carefully before

extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh

Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51

(2019) (“[A] judge should only extend a Supreme Court precedent if the original meaning of the

Constitution can support that extension.”). In such a case, “the rule of law may dictate confining

the precedent, rather than extending it further.” NLRB v. Int’l Ass’n of Bridge Iron Workers,

Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing

en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J.,

dissenting from denial of rehearing en banc) (“[I]f we are forced to choose between upholding

the Constitution and extending precedent in direct conflict with the Constitution, the choice

should be clear.”).

4

I recognize that a panel of our Court has said that “[l]ower courts are ‘obligated to follow Supreme Court

dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statements

undermining its rationale.’” ACLU of Ky. v. McCreary County, 607 F.3d 439, 447 (6th Cir. 2010) (quoting United

States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002)). But the McCreary County panel’s statement about dicta is

dictum itself. We are not bound by dicta of Sixth Circuit panels, Wright, 939 F.3d at 700, or dicta of the Supreme

Court—and for good reason, as jurists and scholars have explained. See, e.g., Torres v. Madrid, No. 19-292, 4 (U.S.

Mar. 25, 2021) (Gorsuch, J., dissenting) (“[W]hatever utility it may have, dicta cannot bind future courts.”); CIGNA

Corp. v. Amara, 563 U.S. 421, 449 (2011) (Scalia, J., concurring in the judgment) (“The Court’s discussion of the

relief available under § 502(a)(3) and Mertens is purely dicta, binding upon neither us nor the District Court. The

District Court need not read any of it.”); Grutter v. Bollinger, 288 F.3d 732, 787 (6th Cir. 2002) (en banc) (Boggs,

J., dissenting) (“More fundamentally, the holding/dicta distinction demands that we consider binding only that

which was necessary to resolve the question before the [Supreme] Court . . . . Any speculation regarding the

circumstances under which race could be used was little more than an advisory opinion.”), aff’d 539 U.S. 306

(2003); Grutter, 288 F.3d at 746 n.9 (treating Supreme Court dicta as only persuasive authority).

No. 18-3329 Preterm-Cleveland v. McCloud Page 44

II.

In this case, no Supreme Court holding addresses the question presented. See Box, 139 S.

Ct. 1780, 1782 (2019) (per curiam) (denying certiorari on the question whether states can

exclude a fetal diagnosis of Down syndrome from the permissible reasons to seek an abortion).

In particular, the Supreme Court has not held that the undue-burden standard should apply to a

law that regulates eugenic abortions.5 There is good reason to conclude that the Court would not

apply that standard to evaluate the compelling state interest at issue here—the eradication of

discrimination.

That anti-discrimination interest has not been addressed in prior Supreme Court abortion

cases. In Gonzales, Stenberg, and Casey, the Court considered the balance between the state’s

interest in unborn life and a woman’s right to an abortion. Gonzales v. Carhart, 550 U.S. 124,

146 (2007); Stenberg v. Carhart, 530 U.S. 914, 930 (2000); Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 877–88 (1992) (plurality opinion). And in June Medical and Whole

Woman’s Health, the Court addressed the balance between the state’s interest in protecting

women’s health and a woman’s right to an abortion. June Med. Servs., L.L.C. v. Russo, 140 S.

Ct. 2103, 2135 (2020) (Roberts, C.J., concurring in the judgment); Whole Woman’s Health v.

Hellerstadt, 136 S. Ct. 2292, 2310 (2016). In both contexts, the Court dealt only with the states’

“legitimate interests” in “potential life” and women’s health. Hellerstadt, 136 S. Ct. at 2309–10;

Casey, 505 U.S. at 877–88. The Court did not consider states’ wholly separate interest in

eliminating discrimination as a reason for an abortion. Thus, the undue-burden standard that the

Supreme Court has applied in abortion cases dealing with the interests in unborn life and

women’s health does not necessarily apply here. In fact, the law at issue in Casey had an anti-

eugenics provision that banned sex-selective abortion. The litigants there began their brief by

making clear that they were not challenging that provision. Box, 139 S. Ct. at 1792 (Thomas, J.,

5

The primary dissent disputes the label eugenic abortion, arguing that eugenics requires a collective and

concerted effort to change humanity’s genetic composition. Donald Dissent at 100–01. But just as a private

decision that is not motivated by animus is still labeled discriminatory if its effect falls more heavily on a protected

class, a private choice that contributes to the elimination of a disfavored genetic trait can be fairly called eugenic

because it accomplishes eugenic ends. Cf. Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576

U.S. 519, 545–46 (2015) (holding that the Fair Housing Act’s prohibition on discrimination encompasses disparate-

impact claims).

No. 18-3329 Preterm-Cleveland v. McCloud Page 45

concurring). That provision remains in force and unchallenged to this day. 18 Pa. Cons. Stat.

§ 3204(c). So although the Casey plurality commented that it had disposed of any other “valid

state interest” that could be presented, see Casey, 505 U.S. at 877, that statement was simply

dictum offered in a case where the anti-discrimination interest was not at issue.

The undue-burden standard that the Court created to address those interests should not

extend to this context. That standard creates an unyielding prohibition on any law that poses a

substantial obstacle to the decision to have a pre-viability abortion. Its prohibition flows

logically from the Court’s determination that a state’s interests in potential life and maternal

health can never justify imposing such a burden. In those contexts, where the Supreme Court has

analyzed the interests and found them wanting, applying a “pure effects test” is appropriate. See

Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health (PPINK),

888 F.3d 300, 312 (7th Cir. 2018) (Manion, J., concurring in part and dissenting in part)

(acknowledging that “Casey’s ‘undue burden’ standard is not a means-ends test, but a pure

effects test”), rev’d in part sub nom. Box, 139 S. Ct. 1780 (2019). The balance of interests has

already been determined; all that remains is to determine the burden on the woman’s abortion

right.

But the Court has never ruled on states’ “compelling interest in preventing abortion from

becoming a tool of modern day eugenics.” Box, 139 S. Ct. at 1783 (Thomas, J., concurring); see

also PPINK, 888 F.3d at 311 (Manion, J., concurring in part and dissenting in part) (“Surely,

Indiana has a compelling interest in attempting to prevent this type of private eugenics.”). That

interest is especially important in light of this country’s ignoble history with eugenics. See Buck

v. Bell, 274 U.S. 200 (1927); Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of

American Constitutional Law 87 (2018).

The antidiscrimination interest, as applied to eugenic abortions, stands apart from the

states’ interest in each “potential life.” See Casey, 505 U.S. at 870. Since the Fourteenth

Amendment enshrined equality as a fundamental constitutional value, our society has made an

affirmative commitment to eradicating discrimination. See, e.g., 42 U.S.C. § 12101 (Americans

with Disabilities Act); 42 U.S.C. § 2000e (Title VII of the Civil Rights Act); Ohio Stat.

§ 4112.02 (forbidding discrimination on the basis of disability, sex, race, and other

No. 18-3329 Preterm-Cleveland v. McCloud Page 46

characteristics). And the Supreme Court has recognized that such antidiscrimination laws serve

“compelling state interests of the highest order.” Roberts v. U.S. Jaycees, 468 U.S. 609, 624

(1984). A law passed to end the “odious view that some lives are worth more than others” and

ensure that people with Down syndrome are not eliminated in America, as they nearly have been

in other countries,6 would fit squarely within that venerable tradition. PPINK, 888 F.3d at 315

(Manion, J., concurring in part and dissenting in part). Accordingly, a state’s interest in passing

such a law would be wholly distinct from its “important and legitimate interest in protecting the

potentiality of human life.” Casey, 505 U.S. at 871 (quoting Roe v. Wade, 410 U.S. 113, 162

(1973)). A eugenic-abortion ban would therefore present a question to which no holding of the

Supreme Court has “direct application,” Rodriguez, 490 U.S. at 484, because the Court has not

considered the antidiscrimination interest in its prior abortion cases.

III.

In light of the Supreme Court’s silence on that issue, we must look to the Constitution’s

original meaning. And it is clear that there is no bar in the text of the Fourteenth Amendment, as

it was understood at its ratification, to the legislative protection of unborn life with Down

syndrome. Applied here, the central question for original meaning should be, “[w]hat did the

average Joe (or Josephine)” from the ratification generation “understand the words” of the

Fourteenth Amendment to mean? Turner v. United States, 885 F.3d 949, 957 (6th Cir. 2018)

(Bush, J., concurring dubitante), cert. denied, 139 S. Ct. 2740 (2019). No such average person

would have understood the operative phrase—“nor shall any State deprive any person of life,

liberty, or property, without due process of law,” U.S. Const. amend. XIV—to create a right to

abort a fetus based on its genetic characteristics. New technology that increases knowledge

about fetal genetics does not alter the Fourteenth Amendment’s original meaning; it merely

creates new challenges for legislation in this area.

Professors Michael McConnell and Nathan Chapman have ably elucidated the original

meaning of the Fourteenth Amendment’s Due Process Clause. Nathan Chapman & Michael

6

See Dave Maclean, “Iceland Close to Becoming First Country Where No Down’s Syndrome Children Are

Born,” The Independent (Aug. 16, 2017), https://www.independent.co.uk/life-style/health-and-families/iceland-

downs-syndrome-no-children-born-first-country-world-screening-a7895996.html.

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McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672 (2012). As they explain,

the Due Process Clause requires each branch of government to “operate in a distinctive manner”

if it seeks to deprive a person of life, liberty, or property. Id. at 1781. But “[n]o significant court

decision, legal argument, or commentary prior to the adoption of the Fourteenth Amendment . . .

so much as hinted that due process embodies the principle that certain natural liberties are

inviolate against any laws.” Id. at 1679–80.7 As such, “courts prior to the adoption of the

Fourteenth Amendment did not treat rights other than those enumerated in positive constitutional

law as impervious to prospective and general” legislation. Id. at 1680. Based on that original

meaning, the generation that ratified the Fourteenth Amendment would not have understood it to

limit a legislature’s authority to prohibit eugenic abortions.

Specific evidence in that regard comes from the very state where this case arose. In

February of 1867, a committee of the same Ohio state senators who had voted to ratify the

Fourteenth Amendment just one month earlier issued a state Senate report advocating for

amendments that would strengthen Ohio’s abortion prohibition in light of an “alarming and

increasing frequency” of abortions. 1867 Ohio Senate Journal App’x 233. The report

proclaimed that “the willful killing of a human being, at any stage of its existence, is murder.”

Id. at 234. And that view was by no means an outlier: there is evidence from many states that the

ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions.

See, e.g., Casey, 505 U.S. at 952–53 (Rehnquist, C.J., concurring in part and dissenting in part)

(demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment

ratification generation). That evidence reinforces the clear showing that the Fourteenth

Amendment’s original meaning allows a state to prohibit eugenic abortions.

That history also raises serious questions as to the correctness of the Supreme Court’s

abortion jurisprudence more generally as a matter of the Constitution’s original meaning. See,

e.g., Gonzales, 550 U.S. at 169 (Thomas, J., concurring); Stenberg, 530 U.S. at 956 (Scalia, J.,

7

See also Ilan Wurman, The Second Founding: An Introduction to the Fourteenth Amendment 9 (2020)

(concluding that McConnell and Chapman’s analysis is correct); Randy Barnett & Evan Bernick, No Arbitrary

Power: An Originalist Theory of the Due Process of Law, 60 Wm. & Mary L. Rev. 1599, 1631–32, 1645–46 (2019)

(agreeing with McConnell and Chapman, with the additional theory that Due Process may have also allowed for

challenges to legislation that had no “constitutionally proper end”); John Harrison, Substantive Due Process and the

Constitutional Text, 83 Va. L. Rev. 493, 558 (1997).

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dissenting); Casey, 505 U.S. at 952–53 (1992) (Rehnquist, J., concurring in part and dissenting in

part). As lower court judges, we should be reluctant to extend that jurisprudence further in the

absence of a Supreme Court holding that directs us to do so.

IV.

This case should begin and end with the Constitution’s text. But it is also worth noting

that here, original meaning is entirely consistent with the Supreme Court’s two primary

approaches to cases involving substantive due process. First, applying history-and-tradition

analysis demonstrates that no fundamental right to eugenic abortion exists. And second, a ban

on eugenic abortion would pass even strict scrutiny under the interest-balancing framework.

A. HISTORY AND TRADITION

When analyzing the scope of fundamental rights, the Supreme Court has instructed that

we must determine whether a right is, “objectively, ‘deeply rooted in this Nation’s history and

tradition.’” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting Moore v. City of

E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)); see also Town of Greece v.

Galloway, 572 U.S. 565, 578–79 (2014) (interpreting the scope of the Establishment Clause

based on our “history and tradition”). Despite our country’s dark dalliance with the eugenics

movement, private individuals preventing the birth of life based on that life’s genetic

characteristics is not deeply rooted in our history and tradition. Mandatory sterilization laws did

not come about until 1907, half a century after the Fourteenth Amendment’s ratification. See

Sutton, supra, at 89. And even after that point, the eugenics movement failed to attain the degree

of consensus necessary to deeply root a practice in our history and tradition. Id. at 125–27; cf.

Town of Greece, 572 U.S. at 578–79 (discussing the history of legislative prayer dating back to

the founding).

Of course, compelled sterilization differs from the private choice to seek a eugenic

abortion. But the compelled sterilization movement represented a national reckoning over the

propriety of eugenics. And that reckoning ended with states’ “across-the-board enactment of

legislation that protected the disabled from discrimination in general.” Sutton, supra, at 126.

That the nation rightly chose to protect those with disabilities rather than discriminate against

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them shows that a state may eliminate discriminatory intent as a permissible reason to seek an

abortion. And it shows that in the modern recurrence of that debate, where some argue that

expectant mothers should determine for their child that a life with Down syndrome is not worth

living,8 states can enshrine into law the value of lives with Down syndrome.

B. INTEREST BALANCING

If we apply the interest-balancing framework that the Supreme Court often employs in

fundamental rights cases, a ban on eugenic abortion would pass even strict scrutiny.9 To survive

strict scrutiny, a law must be “narrowly tailored to serve a compelling interest.” Williams-Yulee

v. Florida Bar, 575 U.S. 433, 444 (2015).

As to the compelling-interest prong, the Supreme Court has found a number of interests

compelling, from preserving confidence in judicial integrity, id., to attaining a diverse collegiate

student body, Grutter v. Bollinger, 539 U.S. 306, 328 (2003), to eradicating discrimination,

Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984). A state’s interest in preventing private

eugenics plainly fits among those compelling interests. See Box, 139 S. Ct. at 1783 (Thomas, J.,

concurring).

As to the narrow-tailoring prong, to be narrowly tailored, a law must be the least

restrictive means of accomplishing the legislature’s compelling interest. United States v.

Playboy Entm’t Grp., 529 U.S. 803, 813 (2000). A law need not be “perfectly tailored” so long

as it is closely fitted to advancing the state’s interest. Williams-Yulee, 575 U.S. at 454 (quoting

Burson v. Freeman, 504 U.S. 191, 209 (1992) (plurality opinion)). Our analysis in EEOC v.

R.G. & G.R. Harris Funeral Homes, Inc. is instructive. 884 F.3d 560 (6th Cir. 2018), aff’d on

other grounds sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). There, in addressing

8

See John Bingham, Richard Dawkins: ‘Immoral’ to Allow Down’s Syndrome Babies to Be Born, The

Telegraph, Aug. 20, 2014, https://www.theguardian.com/science/2014/aug/21/richard-dawkins-immoral-not-to-

abort-a-downs-syndrome-foetus.

9

Because a eugenic-abortion ban passes strict scrutiny, it is unnecessary to address the appropriate level of

scrutiny to apply to such a statute. But it bears noting that in Casey, the plurality seemed to reject the notion that

strict scrutiny applies in abortion cases. See 505 U.S. at 871. If the Court continues to apply interest balancing to

determine the scope of the abortion right, then we may need to determine the appropriate level of scrutiny in a

future, closer case.

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a business’s claim under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, we held

that a total prohibition on discrimination “is itself the least restrictive way to further EEOC’s

interest in eradicating discrimination based on sex stereotypes from the workplace.” Id. at 594–

95.10 A similar conclusion would hold for a eugenic-abortion ban. A prohibition on eugenic

abortions would be the least restrictive way to further states’ compelling interest in eradicating

them. For that reason, a eugenic-abortion ban would be narrowly tailored to further a state’s

compelling interest in preventing eugenic abortions.

V.

The primary dissent appears to assume that H.B. 214’s ethical foundation renders the law

unconstitutional. Donald Dissent at 83 & n.1. That assumption is mistaken. Like most—if not

all—of our criminal laws, H.B. 214 does have its foundation in society’s moral judgments about

right and wrong. See Mary Cheh, Constitutional Limits on Using Civil Remedies to Achieve

Criminal Law Objectives: Understanding and Transcending the Civil-Criminal Law Distinction,

42 Hastings L. J. 1325, 1353 (1991). But that does not make it unconstitutional.

The primary dissent draws its argument to the contrary from the dissent in Gonzales v.

Carhart. See Donald Dissent at 1–2 & n.1. But the majority in Gonzales made clear that

“ethical and moral concerns” can justify a law. 550 U.S. at 158. Indeed, even in the alleged

absence of a victim, our laws can and do enact ethical values as part of the criminal law. See,

e.g., Glucksberg, 521 U.S. at 706–07 (assisted suicide); Ohio Stat. § 2907.24(A)(1)

(prostitution).

Furthermore, the People often enact laws based on moral judgment regarding motive for

conduct. From Blackstone’s Commentaries on the Laws of England to modern criminal codes,

the law has been that in many circumstances a wrongful purpose can make an otherwise lawful

act unlawful. 4 William Blackstone, Commentaries *20–21 (“[T]o make a complete crime

cognizable by human laws, there must be both will and an act.”); Ohio Stat. § 2901.20 (declaring

void any supposed criminal offense without a specified mental culpability). That is especially

10

Harris Funeral Homes did not seek certiorari on the RFRA question, so our opinion was the final word on

that issue. See Bostock, 140 S. Ct. at 1754.

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true in the disability context where, for example, businesses’ employment decisions may be

unlawful when they are made with a discriminatory purpose. See, e.g., EEOC v. Wal-Mart

Stores East LP, 436 F. Supp. 3d 1190, 1192 (E.D. Wis. 2020) (applying the Americans with

Disabilities Act to the firing of a woman with Down syndrome). And the importance of motive

can apply to even our most fundamental rights. That is why the Supreme Court has held that

even the First Amendment right to freedom of speech, the abridgement of which receives the

strictest scrutiny, cannot stand if the speaker abuses that right to defame, incite violence, or

commit fraud, among other limitations. See United States v. Stevens, 559 U.S. 460, 468–69

(2010). The abortion right is not immune from the principle that motive can, and often does,

matter.

VI.

James Madison explained more than two centuries ago that in the United

States “the people, not the government, possess the absolute sovereignty.” James

Madison, “The Report of 1800,” Founders Online, National Archives,

https://founders.archives.gov/documents/Madison/01-17-02-0202. That is why we must decide

these questions based on the text of the Constitution—we do not have the power to adopt, enact,

or implement law, or to second guess the People’s choices. It is for the People, not the courts, to

make the difficult moral decisions that legislation entails.

This case presents one of the most difficult moral questions society faces. As the Casey

plurality acknowledged, “Men and women of good conscience can disagree, and we suppose

some always shall disagree, about the profound moral and spiritual implications of terminating a

pregnancy, even in its earliest stage.” 505 U.S. at 850. Here, add to that difficulty the weight of

making that moral and spiritual choice on the basis of a certain trait the unborn life has. It is a

question on which persons have disagreed.

Some, for example, contend that women have an affirmative duty to abort an unborn life

with Down syndrome. See Bingham, supra. Others adopt the view that it should be left to each

woman to decide whether a fetal diagnosis of Down syndrome necessitates an abortion.

See Ruth Marcus, “The Silenced Majority of Women Who Would Abort a Fetus

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with Down Syndrome,” The Washington Post (Mar. 16, 2018),

https://www.washingtonpost.com/opinions/the-silenced-majority-of-women-who-would-abort-a-

fetus-with-down-syndrome/2018/03/16/6590579e-293d-11e8-874b-d517e912f125_story.html.

Still others subscribe to the principle that no decision to terminate unborn life can be justified

because of Down syndrome. The people of Ohio chose to enact a modest version of that

principle into law by prohibiting doctors’ knowing performance of abortions motivated by a

Down-syndrome diagnosis.

They had good reasons to do so. Parents, family, and friends of persons with Down

syndrome find ample reason to celebrate their differences. To be sure, the condition comes with

challenges. But people with Down syndrome still live fulfilling lives. According to one survey,

a full 99% of individuals with Down syndrome reported being happy with their lives, and 97%

liked who they were. Brian G. Skotko, Susan Levine, & Richard Goldstein, Self-Perceptions

from People with Down Syndrome, 155 Am. J. Med. Genetics Part A 2360, 2360 (2011). What’s

more, they enrich the lives of those around them—79% of parents of children with Down

syndrome felt that “their outlook on life was more positive because of their child,” and 88% of

people whose siblings have Down Syndrome felt that they were better people for their sibling’s

presence in their life. PPINK, 888 F.3d at 316 (Manion, J., concurring in part and dissenting in

part). The people of Ohio were entitled to enact into law their considered judgment that those

with Down syndrome are worth protecting.

The Constitution says nothing about whether a state may enact legislation to protect

unborn life with Down syndrome. It leaves to the People—through their elected representatives,

not unelected judges—the freedom to provide that protection.

No. 18-3329 Preterm-Cleveland v. McCloud Page 53

_____________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

_____________________________________________________

KETHLEDGE, Circuit Judge, concurring in part and concurring in the judgment.

I choose not to join Part V-B of the court’s opinion for two reasons: first, the plaintiffs did not

argue the case in terms of “five burdens”; and second, I think the ground covered in Part V-B is

covered well enough elsewhere in the opinion. I also choose not to join Part VI of the court’s

opinion simply because the court is right that Part VI is dictum: under EMW Women’s Surgical

Center, P.S.C. v. Friedlander, 978 F.3d 418, 433 (6th Cir. 2020), the law of our circuit already is

that the Chief Justice’s opinion from June Medical Services LLC v. Russo, 140 S. Ct. 2103

(2020), is the controlling opinion from that case. Thus, every member of the en banc majority

agrees that EMW sets forth the applicable test here and that H.B. 214 passes it. (Third-order

speculation in one of the dissents—to the effect that I think H.B. 214 would be unconstitutional

under some other test—is mistaken.) Finally, I respectfully disagree with the Seventh Circuit’s

decision in Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State

Department of Health, 888 F.3d 300 (7th Cir. 2018), simply because the statute there, like the

one here, was not a ban on abortion.

No. 18-3329 Preterm-Cleveland v. McCloud Page 54

_________________

DISSENT

_________________

COLE, Chief Judge, dissenting. H.B. 214 is undoubtedly an abortion restriction. But the

majority insists that the issue is not really about a woman’s right to an abortion—reasoning that

because the law bans only knowingly performing certain abortions, H.B. 214 merely restricts the

information and opinions a woman may share with her doctor. But the majority’s attempt to

sidestep one constitutional problem only lands it in another. Judge Donald’s dissent

demonstrates that the law cannot pass muster as an abortion restriction; I write separately to

explain why turning it into a speech restriction does not save it.

It is canonical that the government may not “regulate speech in ways that favor some

viewpoints or ideas at the expense of others.” Matal v. Tam, 137 S. Ct. 1744, 1757 (2017)

(quoting Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993)).

Such laws are presumptively unconstitutional. Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019).

Yet H.B. 214 (at least as the majority characterizes it) does just that.

The lead opinion begins by redefining Ohio’s interest. It explains that H.B. 214, entitled

“Prohibit abortion if unborn has or may have Down Syndrome,” “does not prohibit Down-

syndrome-selective abortions and might not actually reduce the incidence of such abortions.”

Instead, the opinion recasts H.B. 214 as an anti-discrimination law, fundamentally concerned

with limiting discriminatory conversations about Down-syndrome-selective abortions. It reasons

that the law does not burden a woman’s right to an abortion, but simply deters women from

sharing their discriminatory goals with their doctors, thereby protecting the Down syndrome

community, the medical profession, and even the women themselves. Requiring women to lie or

stay silent about their motivations, the lead opinion explains, “is one of H.B. 214’s fundamental

objectives.” But this state-interest shell game doesn’t get the majority very far.

That’s because laws that target discriminatory speech are also unconstitutional. See, e.g.,

Iancu, 139 S. Ct. at 2299; Tam, 137 S. Ct. at 1763; Lamb’s Chapel, 508 U.S. at 394; see also

Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First

No. 18-3329 Preterm-Cleveland v. McCloud Page 55

Amendment, it is that the government may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.”). Ohio may believe that requesting an

abortion due to a fetal diagnosis of Down syndrome is offensive and discriminatory. But the

state may not ban speech for being offensive or even discriminatory. “Speech that demeans on

the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is

hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to

express ‘the thought that we hate.’” Tam, 137 S. Ct. at 1764 (quoting United States v.

Schwimmer, 279 U.S. 644, 655 (1929)).

In its haste to reconcile the law with a woman’s right to an abortion, the majority turns

H.B. 214 into a don’t ask, don’t tell law. So long as doctors don’t ask and women don’t tell, the

majority reassures us that women remain free to exercise their constitutional rights. Because

states cannot force citizens to trade one constitutional right for another, I respectfully dissent.

No. 18-3329 Preterm-Cleveland v. McCloud Page 56

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. I join the dissents of Judges

Cole, Clay, Gibbons, and Donald, and need not say more about why the majority is wrong. I

write separately to punctuate how the lead opinion’s and the concurrences’ reasoning is self-

devouring and logically untenable. The majority’s questionable elevation of the concurrence in

June Medical Services L. L. C. v. Russo, — U.S. —, 140 S. Ct. 2103 (2020), and the outcome of

this case are buoyed by the manipulation of three superficially neutral concepts: law of the

circuit, dicta, and precedent. First, the majority warps the law-of-the-circuit doctrine to avoid a

conclusion that it believes is wrong—that dictum in a Supreme Court concurrence is

precedential. Second, the lead opinion’s own definition of dicta renders nonbinding the

majority’s choice and application of the June Medical concurrence. Third, a triumvirate of

concurrences reveals a view of precedent and history that combined with the majority opinion

render any effort to secure the right to an abortion dead on arrival in this court. Because the

majority and the concurring opinions are simply analytically unsustainable assaults on

reproductive freedom, I dissent.

I.

The Supreme Court’s and this Circuit’s recent abortion decisions need no lengthy

overture. As we deliberated the constitutionality of H.B. 214, Ohio’s reason-based abortion ban,

the Supreme Court struck down a Louisiana abortion regulation in June Medical. June Medical

lacks a majority opinion. The Court’s judgment emerged from a four-Justice plurality and a solo

concurrence by Chief Justice Roberts. The June Medical plurality restated the Court’s

determination in Whole Woman’s Health v. Hellerstedt, — U.S. —, 136 S. Ct. 2292 (2016), that

the undue-burden standard from Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), involves balancing an abortion regulation’s benefits with the burdens that it

imposes on abortion access. See June Medical, 140 S. Ct. at 2112 (plurality opinion). Chief

Justice Roberts, however, stated in dicta that courts should not examine an abortion regulation’s

No. 18-3329 Preterm-Cleveland v. McCloud Page 57

benefits when determining whether the law poses a substantial obstacle to women seeking an

abortion. Id. at 2139 (Roberts, C.J., concurring). In EMW Women’s Surgical Center, P.S.C. v.

Friedlander, 978 F.3d 418 (6th Cir. 2020), a divided panel of this court examined June

Medical’s fractured opinions. Citing the narrowest-grounds rule from Marks v. United States,

430 U.S. 188 (1977), the EMW panel majority reasoned that the Chief Justice’s concurrence is

the narrower of the June Medical opinions and should thus control in its entirety. See EMW,

978 F.3d at 433.

In this case now before us, the majority provides a block quote from EMW (but deleting

all quotation marks and citations) that itself restates the June Medical concurrence. Batchelder

Op. at 14–15 (quoting EMW, 978 F.3d at 433–34). The majority concludes without explanation:

“[b]ecause the test articulated in EMW is the controlling law of our Circuit, we apply it here.”

Id. at 15; see also Kethledge Concurring Op. at 53 (“[U]nder EMW . . . , the law of our circuit

already is that the Chief Justice’s opinion from June Medical . . . is the controlling opinion from

that case.”); Bush Concurring Op. at 42 n.3 (acknowledging “EMW’s status as the law of our

circuit.”).

The majority misunderstands the sole reason that it provides for adopting the June

Medical concurrence. Under the law-of-the-circuit doctrine, a panel of this court may not

overrule a previous panel’s decision unless the Supreme Court issues an intervening decision or

our en banc court overrules the previous decision. See Meeks v. Ill. Cent. Gulf R.R., 738 F.2d

748, 751 (6th Cir. 1984); see also United States v. Johnson, 413 F. App’x 783, 784 (6th Cir.

2011). We are in an en banc proceeding; we are not controlled by EMW, a panel decision. In

other words, the majority insinuates that our hands are tied by a panel decision that we can, and

should,1 overrule.

1

The majority’s decision that the June Medical concurrence controls is wrong for the thoughtful reasons

found in Judge Clay’s dissents here and in EMW and as explained in the Seventh Circuit’s recent decision in

Planned Parenthood of Ind. & Ky., Inc. v. Box, — F.3d —, No. 17-2428, 2021 WL 940125 (7th Cir. Mar. 12, 2021).

In short, neither Marks nor accepted practice “allow[s] dicta in a non-majority opinion to overrule an otherwise

binding precedent.” Id. at *1. But, again, I focus here not on the merits of the majority’s decision, see Cole

Dissenting Op.; Clay Dissenting Op.; Gibbons Dissenting Op.; Donald Dissenting Op., but on the majority’s flawed

process.

No. 18-3329 Preterm-Cleveland v. McCloud Page 58

So why hide the ball and assert that the en banc court is bound by a divided panel in

EMW? Or, at least, why not address and adopt EMW’s lengthy reasoning in full? I suspect that

the majority wishes to avoid the morass of Marks. The Marks rule, admittedly, is as confusing as

it is difficult to apply. See Richard M. Re, Beyond the Marks Rule, 132 HARV. L. REV. 1942,

1976–93 (2019) (explaining four versions of the Marks rule). Judges and academics have spilled

ink and felled forests over Marks generally and June Medical specifically. See, e.g., id. at 1997

(asserting that any interpretation of Marks defies “logic, prudence, or tradition”); United States v.

Duvall, 740 F.3d 604, 604, 607, 618 (D.C. Cir. 2013) (debating which opinion controls in the

Court’s 4-1-4 decision in Freeman v. United States, 564 U.S. 522 (2011)); Marc Spindelman,

Embracing Casey: June Medical Services L.L.C. v. Russo and the Constitutionality of Reason-

Based Abortion Bans, 109 GEO. L. J. ONLINE 115, 136–38 (2020) (explaining that reason-based

abortion bans like H.B. 214 would be held unconstitutional under the June Medical

concurrence). The Seventh Circuit recently supplied a lengthy, thoughtful exposition of Marks

in concluding that the June Medical plurality controls. See Planned Parenthood of Ind. & Ky.,

Inc. v. Box, — F.3d —, No. 17-2428, 2021 WL 940125, at *1 (7th Cir. Mar. 12, 2021). Here, the

majority offers no analysis. A legal doctrine’s complexity does not license abdicating our

obligation to clarify complicated subjects, counsel future courts, and comfort readers that

fairness guided our decision. See Pierre N. Leval, Judging Under the Constitution: Dicta About

Dicta, 81 N.Y.U. L. REV. 1249, 1253 (2006). We ought not coronate Chief Justice Roberts’s

concurrence with zero explanation—in an en banc proceeding no less.

The majority’s refusal to explain its adoption of the June Medical concurrence as binding

law cannot be shrugged off as a seemingly misplaced snafu. Members of this court have

repeatedly skirted the law-of-the-circuit doctrine when they are confronted with precedent with

which they disagree. Their rationale? That they may ignore binding precedent of previous Sixth

Circuit panels when it is not “clear that the court considered the issue and consciously reached a

conclusion about it.” Wright v. Spaulding, 939 F.3d 695, 702 (6th Cir. 2019). Those who

eagerly wielded the conscious-consideration argument to ignore unexplained panel

determinations, see, e.g., id. at 705, United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010),

should likewise behold that the majority here has “no[t] appli[ed] [] the judicial mind to th[e]

No. 18-3329 Preterm-Cleveland v. McCloud Page 59

question” of which June Medical opinion controls, “so there [i]s no decision about it[,]” Wright,

939 F.3d at 704 (internal quotation marks and citation omitted).

But a close read of EMW reveals why the majority here will neither consciously consider

Marks’s application to June Medical nor adopt EMW’s reasoning. As the EMW majority

admitted, the Chief Justice’s “general standard for how to apply the undue burden test” in June

Medical was “well-considered dictum.” EMW, 978 F.3d at 436. So the June Medical

concurrence’s substantial-obstacle test is precedential only if we conclude that “well-considered”

dicta in a standalone Supreme Court concurrence are binding. The EMW majority acknowledged

and admitted as much, concluding that we must “adhere to both the holding of the narrowest

concurring opinion and its well-considered dictum setting forth a general standard for how to

apply the doctrine at issue.” Id. (emphases added). Indeed, the EMW majority bolstered its

conclusion by highlighting several apparent examples of the Supreme Court’s and this court’s

deeming dicta in Supreme Court majorities and dicta in pluralities and concurrences from

fractured Supreme Court decisions to be precedential. See id. at 434–36 (citing Marks’s

treatment of dicta in the plurality of Memoirs v. Massachusetts, 383 U.S. 413 (1966); the Grutter

v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc), majority’s treatment of dicta in Justice

Powell’s opinion in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978); and the

proposition in ACLU of Ky. v. McCreary County, 607 F.3d 439 (6th Cir. 2010), that lower courts

must follow dicta in a Supreme Court majority opinion).

So how does adopting the Chief Justice’s dicta as binding put the majority in a pickle?

The answer: every member of the majority here has expressed zero interest in adhering to dicta.

See Batchelder Op. at 23 (“We recognize that this section is little more than a separate

concurrence and, being dicta, creates no controlling law.”); Bush Concurring Op. at 43 & n.4

(“‘The Supreme Court’s dicta are not law’ . . . . ‘[W]hatever utility it may have, dicta cannot

bind future courts.’”) (citations omitted, alteration in original); Kethledge Concurring Op. at 53

(“I also choose not to join Part VI of the court’s opinion [i.e., the lead opinion of Judge

Batchelder] simply because the court is right that Part VI is dictum[.]”). But consider what the

majority is left with if it followed through with its belief that dicta are not binding. The majority

could adhere only to the Chief Justice’s holding—that “[t]he result in [June Medical] is

No. 18-3329 Preterm-Cleveland v. McCloud Page 60

controlled by our decision four years ago invalidating a nearly identical Texas law”—i.e., Whole

Woman’s Health. June Medical, 140 S. Ct. at 2141–42 (Roberts, C.J., concurring). Therefore,

“[t]here was no majority [in June Medical] to overrule Whole Woman’s Health[.]” Box, 2021

WL 940125, at *8. “[S]o [Whole Woman’s Health] stands as binding on lower courts unless and

until a [Supreme] Court majority overrules it.” Id.

We finally arrive at why the majority is reticent about Marks, EMW, and June Medical.

Concluding that the June Medical concurrence controls necessarily enshrines logic that is

unfathomable to at least some members of the majority—that dicta in a Supreme Court opinion,

a single-Justice concurrence no less, binds this court. The majority has thus backed itself into a

corner. Unless the majority concedes that it is bound by dicta in a solo Supreme Court opinion,

the majority must conclude that only the Whole Woman’s Health balancing test can be applied to

abortion restrictions. The majority cannot escape its bind with its unconsidered and inapposite

invocation of the law-of-the-circuit doctrine.

II.

The lead opinion’s and two of the concurrences’ discussions of dicta also expose this

decision’s disjointed infrastructure. In Part VI, the lead opinion reiterates that the June Medical

concurrence’s undue-burden test controls, but the lead opinion then explains how H.B. 214 also

survives two tests derived from Whole Woman’s Health (as reiterated in the June Medical

plurality) and Gonzales v. Carhart, 550 U.S. 124 (2007). See Batchelder Op. at 23–24. The lead

opinion confesses, however, that its application of the June Medical plurality and Gonzales is

“dicta” and “creates no controlling law[,]” id. at 23, citing Black’s Law Dictionary’s definition

of dictum: “[a] judicial comment made while delivering a judicial opinion, but one that is

unnecessary to the decision in the case and therefore not precedential (although it may be

considered persuasive).” Richmond Health Facilities v. Nichols, 811 F.3d 192, 201 n.8 (6th Cir.

2016) (quoting BLACK’S LAW DICTIONARY (10th ed. 2014)); see also Bush Concurring Op. at 42

(“[O]nly holdings are binding, not dicta. The holding of a case includes only the propositions

that are necessarily decided to support the judgment based on the facts of that case. All else is

dictum.”) (internal quotation marks and citation omitted).

No. 18-3329 Preterm-Cleveland v. McCloud Page 61

The lead opinion has defined the majority off a cliff. By insisting that “H.B. 214 would

not pose an undue burden under any test that the Court could conceivably apply[,]” Batchelder

Op. at 23 (emphasis added), the lead opinion freely admits that the majority did not need to

choose between the June Medical concurrence and the June Medical plurality. Helpfully, Judge

Bush concedes outright that the “determination” of “the correct formulation of the undue burden

standard” “is not necessary to [his] decision here”—logic that likewise extends to the six judges

who fully join the lead opinion. Bush Concurring Op. at 42 n.3. Because deciding which

standard governs a review of H.B. 214 is unnecessary to the majority’s outcome, the majority’s

choosing of the June Medical concurrence is not precedential by the lead opinion’s own

reasoning. By the lead opinion’s logic, a determination that the June Medical concurrence

controls can be precedential in only one scenario—a majority that concludes that H.B. 214

survives Chief Justice Roberts’s undue-burden test but fails every other cognizable legal

standard. As the Chief Justice himself put it: “[I]f it is not necessary to decide more, it is

necessary not to decide more[.]” BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499, 505 (6th

Cir. 2008) (first alteration in original) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C.

Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)).

Thus, the lead opinion has paddled the majority into a Scylla-and-Charybdis conundrum,

and the majority must now choose what to sacrifice. Will the majority concede that its elevation

of the June Medical concurrence is not binding under its own definition of dicta? Or will the

majority rescue Chief Justice Roberts’s concurrence by admitting that H.B. 214 would be

unconstitutional under the June Medical plurality and Gonzales? 2

It appears that the latter is simply not an option for the majority. At least some of the six

judges who joined the lead opinion in full seemingly would never concede that an abortion ban

or regulation should be found unconstitutional under any fathomable test—here or in any other

abortion case. The language of the majority and some of the concurrences betrays the elephant

in the courtroom: some members of the judiciary do not believe that the right to abortion should

2

As Judge Clay points out, the majority cannot solve its dicta problem by dropping Part VI from the lead

opinion, addressing only the June Medical concurrence, or changing their definition of dicta. Black’s Law

Dictionary captures everyone’s understanding of dicta. At bottom, the majority’s choice of the June Medical

concurrence is nonbinding because choosing between the June Medical opinions is unnecessary to their outcome.

See Clay Dissenting Op. at 72–76.

No. 18-3329 Preterm-Cleveland v. McCloud Page 62

exist. See Batchelder Op. at 8 (“[T]he ‘right’ actually implicated or affected here is not the

woman’s right merely to obtain an abortion.”); Bush Concurring Op. at 40, 43, 48–50 (referring

to “unborn life”; implying that Roe v. Wade, 410 U.S. 113 (1973), was incorrectly decided; and

characterizing H.B. 214 as a “ban on eugenic abortion”); Sutton Concurring Op. at 32, 33

(referring to “unborn” and labeling H.B. 214 as an “anti-eugenics law”). Notwithstanding

overtures about the “legitimate interests” of state legislatures, Batchelder Op. at 3, 15;

“compromise[,]” Sutton Concurring Op. at 32, 35; and the will of “We the People[,]” Bush

Concurring Op. at 42, legal standards do not dissuade some judges from giving the states free

reign to curtail this fundamental right, see Batchelder Op. at 15–18 (arriving at opposite

conclusion to that of district court about women’s burdens despite clear-error standard of

review); Sutton Concurring Op. at 33–35 (conveying that federal courts should not interfere with

state legislatures’ regulation of abortion).

The refusal of three members of the majority (Judges Kethledge, Larsen, and Nalbandian)

to concur in Part VI does not rescue the majority from its dicta problem. Again, the majority’s

determination that the June Medical concurrence controls has binding force only if nine

members of this court agree that H.B. 214 is constitutional under the June Medical concurrence

alone. The trio’s concurrence makes clear that no member of the majority believes that this is

the case. See Kethledge Concurring Op. at 53 (“I choose not to join Part V-B of the court’s

opinion for two reasons: first, the plaintiffs did not argue the case in terms of ‘five burdens’; and

second, I think the ground covered in Part V-B is covered well enough elsewhere in the opinion.

I also choose not to join Part VI of the court’s opinion simply because the court is right that Part

VI is dictum[.]”).3

Put bluntly, I take no solace in pointing out that the majority has trapped itself in a maze

of its own words. Unless all nine members of the majority are willing to admit openly that H.B.

214 would be unconstitutional both under the June Medical plurality and under Gonzales—and,

as we know, they won’t—the majority’s conclusion that the June Medical concurrence controls

is not precedential.

3

Of course, Judges Kethledge, Larsen, and Nalbandian have deprived Parts V-B, V-D, and VI of the lead

opinion of any majority status.

No. 18-3329 Preterm-Cleveland v. McCloud Page 63

To sum up why this dicta debacle forces the majority to rely on its novel and erroneous

idea that the panel decision in EMW controls the en banc court, I turn to a footnote in Judge

Bush’s concurrence. Judge Bush writes: “EMW . . . already answered the question that June

Medical . . . raised about the correct formulation of the undue burden standard. That that

determination is not necessary to my decision here does not change EMW’s status as the law of

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