A federal appeals court is deciding the fate of a Missouri law that puts sweeping restrictions on abortions, and a focal point of oral arguments on Tuesday was a provision prohibiting abortions based solely on a Down syndrome diagnosis.
The law adopted in 2019 would ban abortions at the eighth week of pregnancy. The full 8th U.S. Circuit Court of Appeals in St. Louis isn't expected to rule for several weeks. In June, a three-judge 8th Circuit panel upheld an injunction from U.S. District Judge Howard Sachs prohibiting Missouri from enforcing the law's provisions, but the full court decided to hear the case.
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Missouri Solicitor General John Sauer cited high rates of abortions for fetuses with Down syndrome and noted that in some countries, those abortion rates are above 90%.
“This is the crisis against which Missouri enacted its Down syndrome provision that is before the court today," Sauer said.
The law prohibits abortions if Down syndrome is the sole reason for the procedure. But Planned Parenthood Federation of America attorney Susan Lambiase said doctors at Missouri's only abortion clinic, Reproductive Health Services in St. Louis, will likely avoid any abortions involving fetuses with Down syndrome for fear of the consequences. Those consequences potentially include loss of a doctor's medical license, and the loss of the clinic's license.
“You’re asking the doctors to take a risk that they cannot take," Lambiase said.
Sachs said in his 2020 ruling that he thought Planned Parenthood and the ACLU would likely succeed in their lawsuit challenging the law as unconstitutional. Similar laws have been struck down in North Dakota and Iowa.
Legislators who helped draft the Missouri law said it was meant to withstand court challenges, especially challenges to the timing of the ban. The law included a provision stating that if the eight-week ban was struck down, a series of less-restrictive abortion limits would kick in at 14, 18 or 20 weeks. But courts have blocked enforcement of all of those limits thus far.
The measure also includes exceptions for medical emergencies, such as when there is a risk of death or permanent physical injuries to “a major bodily function of the pregnant woman.” But women who become pregnant after being raped or subjected to incest will not be allowed to abort after eight weeks. Women who terminate their pregnancies cannot be prosecuted under the law.
Attorney General Eric Schmitt wants the U.S. Supreme Court to decide the case. In a court filing in July, Schmitt, a Republican, said the Supreme Court should consider whether Missouri’s restrictions are “reasonable regulations on abortion."
Schmitt also said the high court should use the case to decide whether to overturn its 1973 Roe v. Wade decision, which established a nationwide right to abortion at any point before a fetus can survive outside the womb, which is roughly around the 24th week.
The appeals court case over the Missouri law comes weeks after the U.S. Supreme Court allowed a Texas law that bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks into a pregnancy.
The Supreme Court also has agreed to consider allowing the enforcement of a Mississippi law that would ban abortion after 15 weeks of pregnancy, which could dramatically alter nearly 50 years of court precedent on abortion rights.