Eighth Circuit Refuses to Reinstate Missouri Abortion Ban

The appeals court upheld an injunction against a law banning abortions based on a fetal diagnosis of Down syndrome and after eight weeks of pregnancy.  

Anti-abortion advocates gather outside the Planned Parenthood clinic in St. Louis in 2019. (AP Photo/Jeff Roberson)

ST. LOUIS (CN) — A divided Eighth Circuit panel on Wednesday affirmed an injunction that prohibits Missouri from implementing a strict abortion law that includes a ban on the procedure for fetuses diagnosed with Down syndrome.

The St. Louis-based appeals court agreed with Planned Parenthood that the Down syndrome provision is a ban rather than a restriction.

“Unlike a regulation, the Down syndrome provision does not set a condition that—upon compliance—makes the performance of a pre-viability abortion lawful, thus preserving the constitutional right to elect the procedure. Rather, it bans access to an abortion entirely,” U.S. Circuit Judge Jane L. Kelly — the only judge in the Eighth Circuit appointed by a Democratic president, Barack Obama — wrote for the majority.

Missouri Attorney General Eric Schmitt, a Republican, said the state will appeal to the U.S. Supreme Court.

“My son Stephen has shown me the inherent beauty and dignity in all life, especially those with special needs,” Schmitt said in a statement. “While we’re disappointed in the Eighth Circuit’s decision, their decision does provide an avenue for this case to be heard by the Supreme Court, and we plan to seek review in the Supreme Court. I have never and will never stop fighting to ensure that all life is protected.”

Schmitt’s son, Stephen, has a rare genetic condition called tuberous sclerosis that causes tumors to form on organs.

Alexis McGill Johnson, president and CEO of Planned Parenthood of America, acknowledged the fight isn’t over.

“While today we celebrate this hard-fought win for our rights, we should remember that politically motivated attacks — for years — have left Missouri with very limited access to abortion,” McGill Johnson said in a statement. “Instead of ensuring that people have access to the care that they need, Missouri’s legislature has threatened to hold Medicaid hostage.”

She added, “Let me be clear: Planned Parenthood will keep fighting in courts across the country to ensure our patients get the health care they need and deserve.”

Missouri’s GOP-dominated Legislature passed a so-called heartbeat ban in 2019, which forbids abortions on or after the eighth week of pregnancy, along with abortions sought solely because the fetus has Down syndrome. The law makes no exceptions for rape or incest. It also imposes a penalty of up to 15 years in prison for doctors who violate the ban. Women who receive abortions would not be prosecuted.

The law further includes an outright ban on abortions, but only if the U.S. Supreme Court ever overturns Roe v. Wade, the 1973 landmark decision that legalized abortion up until 22 to 24 weeks of pregnancy.

Planned Parenthood of Missouri filed a lawsuit against the state and its health officials in July 2019 after Republican Governor Mike Parson signed the bill into law.

A federal judge blocked Missouri from enforcing the abortion ban in August 2019, a day before it was set to take effect, which prompted the state’s appeal to the Eighth Circuit.

In a hearing before a three-judge panel last September, Missouri Solicitor General John Sauer argued that the state’s tightened abortion restrictions protect fetuses diagnosed with Down syndrome from discrimination.

Kelly rejected the state’s argument that Reproductive Health Services of Planned Parenthood of the St. Louis Region, or RHS, did not show that patients seek abortions based solely on diagnoses of Down syndrome.

“RHS is not required to prove with certainty the threat of irreparable harm,” the judge wrote. “The standard merely requires ‘plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.’”

Planned Parenthood attorney Claudia Hammerman, of Paul Weiss in New York, argued in September that the state’s Down syndrome argument contradicts the landmark 1992 Supreme Court decision in Planned Parenthood vs. Casey, which gave women the unfettered right to a pre-viability abortion.

Kelly agreed the state’s arguments under Casey lack merit.

“Under those requirements, patients could still obtain an abortion at any point before fetal viability so long as they received certain information 24 hours before undergoing the procedure,” Kelly wrote. “Here, by contrast, there is nothing an individual in Missouri could lawfully do to obtain an abortion at or after the applicable gestational age cut-off.”

U.S. Circuit Judge Roger L. Wollman, a Ronald Reagan appointee, joined Kelly in the decision.

Neither Hammerman nor Planned Parenthood immediately responded to requests for comment.

U.S. Circuit Judge David Stras, a Donald Trump appointee, concurred in part but dissented on affirming the injunction on the Down syndrome provision. Stras found the provision’s wording such abortions “solely” based on the diagnosis makes it a regulation instead of a ban.

Stras picked apart testimony made by Planned Parenthood doctor Colleen P. McNicholas.

“Causation poses the biggest hurdle for Reproductive Health Services,” Stras wrote. “No matter how many of Dr. McNicholas’s patients have received a positive Down Syndrome diagnosis—three, three hundred, or three thousand—nothing in her declaration establishes that any of them sought an abortion solely because of it.”

Stras noted that McNicholas said there is generally no medical need for a doctor to know that a Down syndrome diagnosis is the sole reason for an abortion.

“And with no medical reason to inquire, it is her choice to ask the question,” Stras wrote. “Then, if a woman answers by saying she has received a positive Down Syndrome diagnosis, it is again Dr. McNicholas’s choice not to perform the abortion, assuming the woman has not told her that the diagnosis is the sole reason she is seeking it. We cannot enjoin a law based on what someone thinks it says, rather than what it actually says.” (Emphasis in original.)

In granting a temporary restraining order in August 2019, U.S. District Judge Howard F. Sachs found that the law would prohibit two-thirds of Planned Parenthood patients from obtaining abortions and about half of the reported abortions in the state.

Similar laws in Arkansas and Ohio have been struck down in court.

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