ST.LOUIS- A federal appeals court in St. Louis is rehearing a case over a law that would block abortions after eight weeks, the latest in a flurry of abortion cases and legislation that have come to the fore in the weeks since Texas passed the most restrictive abortion law in the nation.
The case examines a 2019 bill signed into law by Gov. Mike Parson that would make abortions illegal after eight weeks, including in instances of incest and rape, with the only exception being if the pregnancy puts the person’s health at risk. The law would also outlaw abortions based on a Down syndrome diagnosis. Planned Parenthood, which operates Missouri’s sole abortion clinic, sued Parson, and U.S. District Judge Howard Sachs blocked the bill from going into law a day before it was set to take effect. That decision was affirmed in June of this year by a three-judge panel from the 8th Circuit Court of Appeals, but in July, the court announced it would consider it again, this time with a full court.
The court’s return to that law comes as a state Republican announced plans to craft a bill that would mimic legislation recently passed in Texas, prohibiting abortions as early as six weeks.
“As a longtime pro-life activist, I’m going to do everything in my power, and I’m going to stand with the other architects of the pro-life bill to make sure that we’re going to use absolutely every legal avenue possible to end abortion in Missouri,” State Rep. Mary Elizabeth Coleman wrote on her Facebook page.
In states like Missouri, where public opposition to abortion is higher than it is nationally, the issue has long been at the center of debate — in the legislature and the courts. Fifty-nine percent of adults surveyed by Pew this spring said abortion should be legal in all or most cases; in 2019, when the bill in question was first introduced, 50 percent of Missourians opposed abortion, compared to 39 percent of people nationally.
It is noteworthy that the 8th Circuit Court of Appeals took up a rehearing of the eight-week ban in the first place, said Sara Benesh, associate professor and chair of the political science department at the University of Wisconsin-Milwaukee, especially a month after the three-judge panel reaffirmed its original decision. Federal courts have acted many times to block bans on abortion before the point of viability because they violate the protections offered by Roe v. Wade. The decision to hear this case, as well as others by the Supreme Court and other federal circuit courts, “suggests that there’s a sea change afoot,” no matter which way those courts rule, Benesh said.
Challenges to the right to legally access abortion have unfolded across several states, with the United States Supreme Court agreeing to hear a case on a 15-week ban out of Mississippi back in May. The state has since reframed its case to specifically challenge the legality of Roe v. Wade. On Friday, the House of Representatives passed legislation that would guarantee the right to abortion — a mostly symbolic gesture, as it will likely not pass the Senate, but one that if codified would make it more difficult for state legislatures and courts at all levels to implement restrictions.
Part of what sets the Missouri case apart from those that have come before it is that the law would ban abortions in the case of specific diagnoses — in this case, Down syndrome.
Laws similarly focused on specific diagnoses also have been introduced in Arizona, South Dakota and North Carolina. A federal judge blocked the law from going into effect in North Carolina earlier this year and this week a federal judge heard oral arguments on an abortion law in Arizona, to determine whether both parts of proposed rule — a ban on abortions tied to certain diagnoses or abnormalities and a new definition of fetuses, embryos, and fertilized eggs as people starting at the point of conception — can go into effect Sept. 29.
During Tuesday’s hearing, Missouri Solicitor General John Sauer, representing the state, opened with arguments specifically focusing on this provision, arguing that “the community with down syndrome is one generation from complete elimination.” While data from the National Down Syndrome Society shows roughly 6,000 babies are born with Down syndrome each year in the United States, not much official data exists on the number of prenatal diagnosis that lead to an abortion.
Planned Parenthood Federation of America attorney Susan Lambiase argued that letting the law go into effect would be a clear violation of legal precedent.
“To do anything but to affirm the decision below this court would have to ignore Supreme Court precedent and overrule the controlling law of this circuit in consistently interpreting that precedent,’ she said, adding that doctors at Reproductive Health Services in St. Louis will in all likelihood avoid abortion based solely on a Down syndrome diagnoses.
Anti-abortion activists, including Missouri Right to Life, have defended the proposed eight-week ban as a “common-sense, life-saving law” in large part because of its focus on Down syndrome. “Killing these babies, simply because of a diagnosis of Down syndrome is discriminatory,” it said in a statement after Tuesday’s hearing.
A judge also asked both parties whether the proposed Down syndrome provision was, in their opinion, a ban or a regulation, something that would affect how legal precedent is applied, Benesh said. Sauer said it was a regulation and that it was an anti-discrimination provision. Lambiase, however, called it a ban.
“For any woman in that circumstance, it is a ban,” she said, “This is an absolute prohibition for anyone in the category.”
Missouri is one of five states across the country with a single abortion clinic. This is not its first legal battle.
The clinic in 2019 sued the state’s health department after it was denied a license renewal, and later a circuit court judge allowed an injunction to remain in place allowing abortions to continue.
“We are prepared for… any outcome from this hearing or anything that the legislature might throw at us next year,” said Dr. Colleen McNicholas, chief medical officer for Planned Parenthood of the St. Louis Region and Southwest Missouri.
But Tuesday’s hearing may be, in some ways, treading new ground in national discourse, Benesh said.
“I think the regulations in Missouri is an interesting move in the abortion-regulation field because we haven’t seen many cases talk about why women might want to choose to end pregnancy. I think when you open that door and say that there are certain reasons that are illegitimate or problematic from a state’s perspective, that’s also by itself going to limit the protection of this privacy right for women,” she said.