Appeals Court Panel Upholds Ohio Law.

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has reversed a lower-court decision and upheld Ohio House Bill 351.

Ohio abortionist Martin Haskell and his clinic had challenged the state's second attempt at enacting a partial-birth abortion statute not long after the United States Supreme Court's Stenberg v. Carhart decision overturned Nebraska's ban on partial-birth abortion. On September 20, 2001, U.S. District Judge Walter H. Rice agreed with Haskell.

But last month the appeals court panel reversed Rice and upheld Ohio House Bill 351 by a 2-1 margin. Judge James Ryan wrote the majority opinion for himself and Judge Alice Batchelder. His analysis, published December 17, includes a number of passages which caution against routine judicial hostility to legislative initiatives.

For example, Ryan wrote that the state of Ohio has interests which "warrant a measure of deference, rather than the virtual assumption of unconstitutionality that has led federal courts, thus far, to invalidate the efforts of at least 20 states to exercise the limited sovereign authority to regulate abortion and abortion methods." The "substantial state interest" Ryan enumerated is in "potential life throughout pregnancy," mentioned specifically in the 1992 Casey decision which narrowly upheld Roe in a reformulated fashion.

Judge Ryan went on to elaborate. He wrote that before the High Court overturned Nebraska's ban on partial-birth abortion in its 2000 Stenberg v. Carhart decision, it did so only after "acknowledging the legitimate relationship between the interest in protecting fetal life and the more subtle interest motivating the Nebraska legislature's decision to ban partial-birth abortion, that is, showing concern for fetal life; preventing the unnecessary death of fetuses when they are substantially outside the mother's body; maintaining a strong public policy against infanticide; and preventing unnecessary cruelty."

Such stern but measured language has not often marked the judiciary's examination of state statutes attempting to put a stop to what the late Sen. Daniel Patrick Moynihan once described as "too close to infanticide."

Plaintiffs asserted, Ryan wrote, "that this exception [to the Ohio ban] is constitutionally inadequate because, they argue, a valid health exception must give physicians the discretion to use the partial-birth procedure in any and every circumstance in which a particular physician deems the procedure preferable to other readily available and more widely used procedures, such as the dilation and evacuation (D&E) procedure."