Trump DOJ backs Ohio law restricting abortions

President Trump will attend the March for Life in Washington, D.C. on Friday. He will be the first president to do so.
The event is held every year on the anniversary of the Supreme Court’s decision in Roe v. Wade.

The Trump administration is supporting the pro-life movement in substantive ways as well. The most recent example is the Justice Department’s filing of a brief supporting an Ohio law that restricts abortion.

The law prohibits abortion providers from performing an abortion they know is sought because of Down syndrome. It expressly shields woman who seek such an abortion from any and all liability.

Planned Parenthood challenged the law before it took effect. A federal district court judge enjoined its enforcement.

On appeal to the U.S. Court of Appeals for the Sixth Circuit, a panel affirmed the district court’s decision by a 2-1 vote. The majority opinion was written by Judge Bernice Bouie Donald, an ultra-liberal Obama appointee. The dissent was by Judge Alice Batchelder, an appointee of George H.W. Bush.

Both the majority opinion and the dissent relied on the Supreme Court’s decisions in Roe v. Wade and Casey v. Planned Parenthood. The majority claimed that these decisions confer a “categorical” right to abortion before viability.

The dissent argued that to determine whether a restriction on abortion is an “undue burden” under Casey, courts must consider “the State’s interests and the benefits of the law, not just the potential burden it places on women seeking an abortion.” The district court conducted no such inquiry in this case.

What state interest might support the Ohio law? Quoting from a Justice Thomas concurring opinion in another abortion case, Judge Batchelder pointed to “a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” One can see a connection between eugenics and the abortions the Ohio law wants to curtail.

The State of Ohio seeks review of the decision by the full Sixth Circuit. That court has six judges who were appointed by President Trump.

The Justice Department brief referenced above is a “friend of the court” (or amicus) brief that supports Ohio’s effort to have the full court hear the case. The DOJ says the Ohio law affirms that people with Down syndrome have lives worth living and protecting. In addition, the law protects the medical profession from harm to its integrity and protects women from abortion providers who may seek to pressure them into obtaining an abortion because of Down syndrome.

The brief was filed by the DOJ’s Civil Rights Division, which enforces key federal anti-discrimination laws including the Americans with Disabilities Act and the Individuals with Disabilities Education Act. The amicus brief emphasizes the federal government’s interest in the equal dignity of those with disabilities. It argues that the unborn should not have life terminated because they have a disability.

When Donald Trump began his run for the presidency, I didn’t view him as a social conservative. However, he is governing as one, as demonstrated by his attendance at the March for Life and by the DOJ’s amicus brief.

Christian Adams has more on the brief. Jonathan Adler discusses the case here. Ed Whelan does so here.

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