A federal appeals court heard oral arguments Tuesday on whether to allow Missouri’s sweeping 2019 law restricting abortions at eight weeks of pregnancy to go into effect as a fight over abortion rights in the Supreme Court looms.
State officials urged judges of the Eighth Circuit Court of Appeals to lift an injunction that’s blocked the law from being implemented since its passage two years ago. The state’s sole abortion provider, a Planned Parenthood clinic in St. Louis, brought suit to block the law.
The hearing came weeks after the Supreme Court declined to block a new Texas law prohibiting abortions at about six weeks of pregnancy. It was the first time a state has successfully implemented a broad ban on the procedure before a fetus can survive outside the womb since a landmark 1973 ruling established a constitutional right to abortion.
A three-judge panel of the Eighth Circuit upheld the injunction on Missouri’s law in June. But in an unusual move the full court, a majority of whom are Republican appointees, decided to rehear the case.
The law prohibits abortion after 8 weeks of pregnancy and includes a series of triggers that ban abortion at 14, 18 and 20 weeks if the 8-week prohibition is overturned. And it ban abortions for the reason of a fetus’s race, sex or solely for the diagnosis of Down syndrome or other conditions that might be fatal. There is no exception for victims of rape or incest.
On Tuesday, judges hinted they would be willing to allow parts of the law go into effect. Discussion focused almost entirely on the Down syndrome provision, or the “reason ban,” with judges appearing sympathetic to Missouri’s argument that the state has the right to restrict what it called “eugenic abortion.”
“The community of people with Down syndrome is just one generation away from complete elimination through the practice of eugenic abortion,” said Dean John Sauer of the Missouri Attorney General’s office, defending the law. “This is a crisis against which Missouri enacted the Down syndrome provision that is before the court today.”
He said the law was not an unconstitutional ban on abortions but rather a regulation, which Supreme Court precedent has said is permissible if it does not pose an “undue burden” on women seeking the procedure.
Planned Parenthood’s attorney Susan Lambiase characterized the provision as a ban.
“The reason ban here is a ban, because if denied abortions here at [the St. Louis clinic], there is nowhere else to go,” she said. “It is a law that prohibits any woman from making the choice, from making the ultimate decision whether to terminate her pregnancy pre-viability, one that prohibits an individual’s choice and mandates that the outcome is no abortion.”
One judge argued to Lambiase that a woman could still get the procedure in Missouri if she gave a different reason for wanting the abortion. Lambiase said that was not possible because medical providers would be penalized for performing one without certifying they know of no fetal condition diagnosis.
Another, Chief Judge Lavenski Smith, asked whether the fetus’ race would be an acceptable reason to seek an abortion. Lambiase argued that decades of Supreme Court precedent do not allow states to prohibit abortions for any reason prior to the fetus’ ability to survive outside the womb.
“The state’s interest in anti-discrimination could be dealt with myriad ways that don’t affect fundamental constitutional rights of people seeking abortion,” Lambiase said, later adding, “The Supreme Court has not changed its precedent.”
But a potential dramatic rollback of that precedent loomed over the hearing.
The high court is poised to revisit its 1973 Roe v. Wade decision next year in the case of a Mississippi 15-week abortion ban. Mississippi officials have asked the court, which consists of a conservative majority, to overturn that decision and return the right to ban pre-viability abortions to the states. Oral arguments are scheduled for December.
Sauer told the Eighth Circuit judges the decision would be “highly relevant” to determining whether to allow the Missouri law to go into effect, but urged the court to rule in Missouri’s favor sooner.