Abortion Laws Do Not Always Require Health Exceptions, Appeals Panel Rules.(Law overview)

In a decision that remains largely under the radar, a federal appeals court has rejected a key weapon in the pro-abortion legal arsenal. On February 24, the U.S. 6th Circuit Court of Appeals said that U.S. District Judge Susan Dlott had erred when she concluded that every law which regulates abortion must contain a general health and life exception.

Writing for a three-member panel, Judge David McKeague said that "close scrutiny of the case law reveals that no such blanket requirement has been imposed." The panel also held that lower courts may not strike down entire statutes when a narrower ruling is possible, citing the Supreme Court's unanimous decision recently handed down in Ayotte.

Legal commentators from all perspectives have tried to read the tea leaves in Ayotte. Many speculated that one result might be that pro-abortionists would not be able to just waltz into court, conjure up a "parade of horribles" concerning the law's alleged effect on maternal life or health, and have the law stricken in its entirety prior to it ever going into effect. Likewise, the speculation has been that courts might also be unwilling to gut a law in its entirety if, when it takes effect, only a portion of the law proves to be in conflict with Supreme Court rulings.

However, while rejecting what is called a "per se" requirement [Judge Dlott's determination that every abortion statute must have life and health exceptions], the panel did find Dlott's alternative basis for invalidating the Ohio law at issue persuasivethat plaintiffs were likely to succeed on the merits because substantial medical evidence had been presented that there could be a significant risk to at least some women's health or lives in certain circumstances, if they were not allowed to have a chemically-induced abortion, the two-drug RU486 abortion technique.

"There are some circumstances in which the surgical option is considerably more risky for some women," wrote Judge McKeague, who was joined by judges Karen Nelson Moore and John Rogers in the 30 decision. The implication is that if these specific circumstances were taken into account, the statute would be constitutional. Thus the result of the panel's action was to vacate in part Dlott's ruling and "remand for consideration of the appropriate scope of injunctive relief in light of the United States Supreme Court's recent decision in Ayotte v. Planned Parenthood of Northern New England."

Ohio Attorney General Jim Petro said he welcomed the chance to return to Judge Dlott to argue in favor of a ...