Federal appeals court upholds temporary blocking of Missouri’s 8-week abortion ban

A federal appeals court has upheld the temporary blocking of Missouri’s restrictive 2019 abortion law from going into effect as a lawsuit makes its way through the legal system.

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 ban is overturned. And it prohibits 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.

The Wednesday decision by a three-judge panel of the 8th Circuit Court of Appeals maintains the Missouri abortion laws that were in place before the 2019 bans, though the number of women getting the procedure has fallen dramatically since the new law’s passage.

A legal battle over the law itself is ongoing in federal district court. The outcome could rest on an upcoming U.S. Supreme Court case over a Mississippi law that bans most abortions after 15 weeks. The court’s decision, expected next year, will have implications for all state laws that restrict abortions before a fetus can survive outside the womb.

The Missouri suit was brought by Reproductive Health Services of Planned Parenthood of the St. Louis Region, which operates Missouri’s sole abortion clinic.

“At a time when Missouri politicians, at the behest of Gov. Parson and anti-abortion ideologues, continue their relentless attacks on reproductive health care, our rights often come down to one court decision at a time,” CEO Yamelsie Rodriguez said in a statement. “For now, we celebrate our continued ability to provide safe, legal abortion at the last remaining clinic in Missouri.”

Spokespeople for Gov. Mike Parson and the Department of Health and Senior Services could not immediately be reached for comment.

Missouri Attorney General Eric Schmitt, who is running for U.S. Senate, said in a statement that he plans to ask for the Supreme Court to review the decision. He focused on the “reason ban” on abortions sought due to diagnoses of Down Syndrome or other conditions. His son Stephen is on the autism spectrum and has other special needs, according to his campaign website.

“My son Stephen has shown me the inherent beauty and dignity in all life, especially those with special needs,” Schmitt said. “While we’re disappointed in the 8th 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.”

In appealing, Schmitt would be joining other states in pushing for the Supreme Court to rule on reason bans. The full Eighth Circuit in January blocked a similar law in Arkansas, which has already made a petition to the high court.

Proponents of reason bans have argued seeking an abortion on the grounds of a Down Syndrome diagnosis is a form of eugenics, and the issue has gained political traction around the country in recent years.

Wednesday’s decision is at odds with one made by the full Sixth Circuit Court of Appeals in April that allowed Ohio’s ban on abortions after a fetal Down Syndrome diagnosis to go into effect.

District Court Judge Howard Sachs initially blocked implementation on the fetal age-based abortion bans on the eve they were to go into effect in August, 2019, finding that the clinic was likely to succeed in getting them overturned. He later agreed also to temporarily block the reason ban.

Missouri appealed. Eighth Circuit Judges Jane Kelly, Roger Wollman and David Stras agreed with Sachs over the 8-week ban.

Under the Missouri law, “There is nothing an individual in Missouri could lawfully do to obtain an abortion at or after the applicable gestational age cut-off,” Kelly wrote, making it an unconstitutional ban on abortions before the fetus is viable.

Stras dissented over the issue of the reason ban.

Planned Parenthood had argued the law presented an “unjustifiable risk,” in which physicians could be prosecuted for performing an abortion if the patient was aware of the fetus’s sex, race or medical diagnosis.

The clinic’s chief medical officer Dr. Colleen McNicholas told the court she was not aware of any cases in which a fetus was aborted because of its race or sex, but said there were instances in which pregnancies were terminated based on a Down Syndrome diagnosis.

Stras wrote in a dissenting opinion that wasn’t enough to prove abortion providers would be harmed by the reason ban.

“Absent knowledge that a Down Syndrome diagnosis is the sole reason for an abortion, the statute does not apply,” he wrote.