ST. LOUIS — The Missouri State Solicitor General told an Eighth Circuit panel Thursday that the state’s tightened abortions protect fetuses diagnosed with Down syndrome from discrimination.
“A radical reduction in the number of the class of people with Down syndrome would inflict an incalculable loss in our society,” John Sauer told the three-judge panel while making the state’s argument. “People with Down syndrome are literally one generation away from complete elimination.”
He continued, “The epidemic of abortion targeting children with Down syndrome for elimination fully because of their disability, not for any other reason, is a crisis.”
Planned Parenthood attorney Claudia Hammerman, of Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York, argued 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.
“Casey is clear that not a single woman can be denied or forbidden to have an abortion,” Hammerman told the court. “This is a complete and entire ban. This will prohibit any woman, who in counseling volunteered to her doctor that she is seeking an abortion because they have a diagnosis of Down syndrome.”
At issue is the “heartbeat ban,” passed by the state’s GOP-dominated Legislature in 2019, which forbids abortions on or after the eighth week of pregnancy — along with abortions sought solely because the fetus has Down syndrome — with no exceptions for rape or incest. In addition to the eight-week cutoff, the bill 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 bill also includes an outright ban on abortions, but only if the Supreme Court ever overturns Roe v. Wade, the 1973 landmark decision that legalized abortion up until 22 to 24 weeks of pregnancy.
Missouri already has one of the most restrictive abortion laws in the country, with a 72-hour waiting period in addition to the impending eight-week ban.
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.
Granting a temporary restraining order Tuesday, 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 in 2019.
U.S. Circuit Judge Jane L. Kelly, the only judge in the Eighth Circuit appointed by a Democratic president — Barack Obama — questioned Sauer on how the state’s restrictions on Down syndrome abortions would square with Casey.
“Casey did not decide whether a state may prohibit an abortion for a discriminatory reason,” Sauer said.
Kelly also questioned if the law interfered with a women’s right to a pre-viability abortion.
“I believe Casey says the state cannot present a substantial obstacle to a woman’s decision to bear or (abort) a child,” Sauer said. “It does not say there is right to bear or (abort) a particular child, a child with preferable characteristics. There’s nothing anywhere in Casey that says you have a right to a child with these particular characteristics.”
U.S. Circuit Judge David Stras, a Donald Trump appointee, asked Sauer if there was any consideration given to other disabilities and why just Down syndrome.
Sauer said there is nothing in the legislative record mentioning other diseases, but he emphasized that the “elimination” of Down syndrome fetuses is becoming a crisis.
“I’m not aware of anything like the evidence we have of any other class of people on the brink of elimination like the evidence we have in this case,” Sauer said.
The state’s attorney pointed out abortion rates for children with Down syndrome in Denmark, South Korea and the United Kingdom approach 90%. Sauer said the United States’ numbers are somewhere between 67 and 93%.
Hammerman said the law has a chilling effect on doctors at the state’s lone abortion clinic. Stras questioned her on the actual harms of Planned Parenthood’s case.
“I think what you’re hypothesizing, Your Honor, is that our clients and the doctors at the last remaining abortion clinic in Missouri should have to run the risk of losing their medical license, because someone disagrees as to whether they had any knowledge that Down syndrome was the sole reason for a woman seeking an abortion,” Hammerman said. “And we think that this is a completely inappropriate burden to put on these providers.”
Hammerman said the doctors have stated they would not provide abortion care to anyone when there is even the possibility of a Down syndrome diagnosis, for fear of legal repercussions, without injunctive relief from the law. She added the hostile climate of the state toward abortion reinforces the fear her clients have.
“The suggestion that doctors should risk such Draconian penalty where they are aware of a Down syndrome diagnosis is just unreasonable,” Hammerman said.
U.S. Circuit Judge Roger L. Wollman, a Ronald Reagan appointee, joined Kelly and Stras on the panel, which took the matter under advisement. There is no timetable for a decision.
The lawsuit is the latest in an ongoing legal battle between Planned Parenthood and Missouri.
In another matter, the state attempted to deny Planned Parenthood’s abortion license in 2019, which would have made Missouri the first state without any abortion providers since 1973. An administrative hearing commissioner granted the license in May after a week-long hearing in October 2019.
In yet another civil matter, the Missouri Supreme Court ruled that the state’s attempt to deny Planned Parenthood millions of medical reimbursement payments due to its status as an abortion provider was unconstitutional.