U.S. Department of Justice building in Washington, D.C. Photo by Diego M. Radzinschi/ ALM

The Trump administration's U.S. Justice Department was allotted argument time Thursday for a hearing next month in the U.S. Court of Appeals for the Sixth Circuit, where the government will defend an Ohio state law that would restrict the ability of women to terminate certain previability pregnancies.

The Justice Department is defending Ohio in the case Preterm Cleveland v. Himes, which will be heard by the Sixth Circuit sitting as a full court. The government announced the filing of the friend-of-the-court brief last month, and recently asked the court for argument time.

"The United States has an interest in the scope of the Supreme Court's undue-burden standard applied in the context of abortion regulations and has participated in cases involving state abortion laws," DOJ's Eric Dreiband, head of the civil rights division, told the appeals court earlier this week.

The 2017 Ohio law, which a trial judge enjoined, prohibits an abortion provider from "purposely" performing or inducing or attempting to perform or induce an abortion on a pregnant woman if the provider "has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of" a "test result" or "prenatal diagnosis" of "Down syndrome in an unborn child" or "[a]ny other reason to believe that an unborn child has Down syndrome."

The ban contains no exceptions, even if abortion is necessary, to preserve the life or health of the woman.

The Justice Department's amicus brief was submitted by Dreiband and other civil rights division lawyers, and by Justin Herdman, the U.S. attorney for the Northern District of Ohio, and David Devillers, the U.S. attorney for the Southern District of Ohio.

The brief argued that the Ohio law "protects individuals with disabilities from prejudice and indifference and the medical profession from harm to its integrity and reputation." The brief also asserted the law "wards against the slippery slope to medical involvement in race- or sex-based abortions."

"Consistent with those goals, the law does not prohibit any abortions," Dreiband, a former Jones Day partner, wrote in the brief. "Instead, it merely forbids providers to participate in abortions they know are sought on the basis of Down Syndrome."

Dreiband also told the appellate court that the law does not create a "substantial obstacle" to women's rights to obtain previability abortions. "It certainly does not create a substantial obstacle for a large fraction of affected women—let alone all such women. And regardless, any burdens would be outweighed by the law's substantial benefits. Nothing in [Planned Parenthood v.] Casey (or any other Supreme Court decision) holds otherwise."

The clinics opposing the law, known as H.B. 214, counter that the law "does nothing to improve the lives of children or adults with Down syndrome (or any other disability, for that matter) or their families. It does not expand or strengthen the enforcement of existing anti-discrimination laws. It does not allocate much-needed funding for education, health care, or vocational training for people with Down Syndrome or any other disabilities."

The district court, they argue, saw H.B. 214 "for exactly what it is—an unconstitutional abortion ban that violates more than four decades of unwavering Supreme Court precedent—and properly issued a preliminary injunction below."

The clinics' counsel include B. Jessie Hill of Case Western Reserve University School of Law; Carrie Flaxman of Planned Parenthood Federation of America, and Alexa Kolbi-Molinas of the American Civil Liberties Union. Lawyers for the clinics did not oppose the government seeking argument time. The hearing is set for March 11. It was not clear whether Dreiband or another civil rights division lawyer would argue for the Justice Department.

In 2018, a top Trump-era civil division lawyer, Hashim Mooppan, argued before the en banc Sixth Circuit in a separate abortion-related case. The head of the civil division at the time, Chad Readler, formerly of Jones Day, has since been confirmed to the Sixth Circuit appeals court.

In 2002, the George W. Bush administration's Justice Department drew some criticism for filing an amicus brief in the Sixth Circuit that urged the appellate court to reject a challenge to an Ohio law banning so-called partial-birth abortions.

"No federal entity is a party to the Ohio case; no existing or proposed federal laws are implicated; and the Justice Department's brief identifies no federal programs that might be affected," Trevor Morrison, a former Justice Department attorney and now dean of New York University School of Law, said in a post then about the DOJ's brief.

The Supreme Court last year confronted an Indiana law with a similar prohibition to Ohio's H.B. 214 in the case Box v. Planned Parenthood of Indiana and Kentucky.

In that case, the Seventh Circuit struck down the law's requirement that fetal remains be disposed of in the same manner as human remains—burial or cremation—and a prohibition on abortion providers performing abortions motivated solely by the race, sex, or disability of the fetus, including Down syndrome. The Justice Department did not file an amicus brief in that case.

The high court, in an unsigned opinion, reversed the appellate court's ruling on the fetal remains requirement but denied review on the race, sex and Down syndrome prohibition, leaving in place the lower court decision.

The Supreme Court's ruling said it was expressing no view on the selective abortion prohibition. "Only the Seventh Circuit has thus far addressed this kind of law," the court said. "We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals."

 

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