# Preterm-Cleveland v. Stephanie McCloud > Court of Appeals for the Sixth Circuit · April 13, 2021 · 994 F.3d 512 URL: https://www.frixlaw.com/law-library/cases/4677673 ## Case - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 13, 2021 - **Citations:** 994 F.3d 512 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4677673 ## How later opinions describe it (automated extraction) - concluding that a challenge to a similar, but even more restrictive, law was not likely to succeed on the merits - noting that the Supreme Court has found “preserving confidence in judicial integrity” to be a compelling interest (citing Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015)) ## Opinion text 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 ┐ PRETERM-CLEVELAND; PLANNED PARENTHOOD │ SOUTHWEST OHIO REGION; WOMEN’S MED GROUP │ PROFESSIONAL CORPORATION; ROSLYN KADE, M.D.; │ PLANNED PARENTHOOD OF GREATER OHIO, │ Plaintiffs-Appellees, > No. 18-3329 │ │ v. │ │ 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. _________________ OPINION _________________ 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 No. 18-3329 Preterm-Cleveland v. McCloud Page 19 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.”). No. 18-3329 Preterm-Cleveland v. McCloud Page 23 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. No. 18-3329 Preterm-Cleveland v. McCloud Page 43 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. No. 18-3329 Preterm-Cleveland v. McCloud Page 47 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). No. 18-3329 Preterm-Cleveland v. McCloud Page 48 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 No. 18-3329 Preterm-Cleveland v. McCloud Page 49 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 s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4677673. Public record. Not legal advice.