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En banc Eighth Circuit hears challenge to Missouri’s selective abortion ban

Opposition to banning abortions based on a diagnosis of Down syndrome is "modern-day eugenics,” Missouri’s Republican attorney general claims.

ST. LOUIS (CN) — Usually silent on pending litigation, Missouri’s attorney general held a press conference Tuesday immediately after lawyers from his office made their case before the full Eighth Circuit for a strict abortion law that includes a ban on the procedure for fetuses diagnosed with Down syndrome.

“This is modern-day eugenics,” Republican Attorney General Eric Schmitt told reporters. “I mean this is discriminating to the most extreme level, the elimination of an entire class of people, because of a trait, because of their diagnosis, and I just fundamentally believe that is not who we are as a country and that's to me what this fight is about.”

During the 40-minute hearing before the St. Louis-based appeals court, Planned Parenthood attorney Susan Lambiase argued the opposite.

“It's not eugenics when a person is making a decision about whether or not she can sustain her pregnancy or choosing to terminate it,” Lambiase told the court. “There is a myriad of factors, there may be different reasons why a person makes that decision. And it's not because that person is trying to do away with a particular disability. And certainly, if the state's interest is anti-discrimination, that could be dealt with in myriad ways that don't affect fundamental constitutional rights of people seeking abortions.”

In a decision last June, a three-judge panel of the Eighth Circuit agreed with Planned Parenthood that the Down syndrome provision is an unconstitutional ban rather than a restriction.

Missouri’s GOP-dominated Legislature passed a law 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 overturns Roe v. Wade, the 1973 landmark decision that legalized abortion up until 22 to 24 weeks of pregnancy.

Schmitt, who is also a U.S. Senate candidate, echoed the arguments made by Solicitor General John Sauer during the appellate hearing.

“Today we argue that every single life matters,” Schmitt said. “All life is sacred, and they were all made in the image of God. No matter our abilities or disabilities, individuals with Down syndrome and other diagnoses bring unique joy, unconditional love and beauty to our world.”

Schmitt said the life expectancy for people with Down syndrome has increased by 50 years since 1960, but that increase has not occurred due to medical advancement.

“For decades, people with Down syndrome faced appalling discrimination from the medical community and beyond,” Schmitt said. “They were institutionalized, neglected, abused, and denied lifesaving and life changing treatments that other children were provided.”

Schmitt told reporters the issue is personal for him because his son, Stephen, was born with a genetic condition that causes tumors to grow on his organs. His son is also nonverbal, on the autism spectrum and suffers from seizures.

During the en banc Eighth Circuit hearing held by teleconference, Sauer argued that Planned Parenthood doctors were creating a self-inflicted harm by claiming they would not perform abortions on patients with a Down syndrome diagnosis.

The court questioned Lambiase on the issue, pointing to language in the law prohibiting the procedure if the doctor knew it was the sole reason for the abortion. One of the judges specifically asked why a doctor could not simply put other reasons for the abortion in the patient’s medical chart to cover themselves.

“There is a risk of the doctors getting their licenses taken away, there is a risk of [Planned Parenthood Reproductive Health Services] getting its license removed and they could no longer function,” Lambiase said. “It is a risk, and courts have said particularly in the abortion context, that when faced with the threat of severe sanctions … doctors are reasonable in taking reasonable steps to avoid those kinds of penalties.”

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.

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 prevent about half of the reported abortions in the state. Missouri appealed his ruling to the Eighth Circuit.

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

Missouri is part of a group of conservative states that have passed abortion restrictions in hopes of overturning Roe v. Wade through an increasingly conservative U.S. Supreme Court.

Tuesday's hearing took place a few weeks after the Supreme Court allowed a Texas law that bans abortions after six weeks of pregnancy to take effect. The high court has also agreed to consider allowing the enforcement of a Mississippi law that would ban abortion after 15 weeks of pregnancy.

The Eighth Circuit is not expected to issue a ruling for several weeks.

Schmitt is confident the state will be successful, but vowed an appeal to the Supreme Court if the Eighth Circuit again ruled against the law.

“I think that we are on the right side of this issue and we’re going to continue to fight for the most vulnerable among us,” he said.

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