A federal judge Tuesday temporarily blocked part of Missouri’s new abortion law, pausing prohibitions against abortion based on gestational age, but letting stand the provision barring the procedure for reasons of sex, race, or Down Syndrome diagnosis.
The decision, by U.S. District Court Judge Howard Sachs, was handed down on the eve of the law’s scheduled implementation. It followed a two-hour Monday hearing in the U.S. District Court of the Western District of Missouri’s Kansas City courthouse.
The division of Planned Parenthood that runs Missouri’s sole abortion clinic, in St. Louis, sued the state on July 30, asking for a preliminary injunction against parts of the law.
It asked the court to find unconstitutional a ban on abortions after 8 weeks of pregnancy. Planned Parenthood also challenged portions of the law that would trigger bans at 14, 18 and 20 weeks of pregnancy if the initial 8-week ban was found unconstitutional.
The abortion provider wanted the court to also block the so-called “reason ban,” a prohibition on abortions on the basis of race, sex and a diagnosis of Down Syndrome.
Sachs ordered Missouri officials to not enforce the gestational age bans while the matter is in court, saying the law targeted fetuses that were not viable outside of the womb.
In so ruling, Sachs agreed with Planned Parenthood’s argument that the Missouri law is in conflict with a 1992 Supreme Court decision that states cannot bar a woman from terminating her pregnancy before viability.
He noted that the 8-week ban, which he said “most obviously” demonstrated “hostility” to Supreme Court precedent, would have prohibited more than two-thirds of Planned Parenthood’s Missouri patients from seeking abortions.
“While federal courts should generally be very cautious before delaying the effect of State laws, the sense of caution may be mitigated when the legislation seems designed, as here, as a protest against Supreme Court decisions,” Sachs said.
Planned Parenthood was highly likely to succeed on this issue, Sachs wrote, not only in seeking a preliminary injunction, but also in “final judgment” on the case.
Sachs noted that rulings in other courts show that Planned Parenthood is “likely to prevail” in getting the anti-discrimination ban, when applied to non-viable fetuses, struck down. Missouri already has a law that bans women from terminating pregnancies when fetuses can live outside the womb.
Sachs said the reason ban was the “most challenging and novel” of the issues represented in the case.
“The legal issue is whether the public, through legislation, has a right to intervene and prohibit such a discriminatory or “selective” abortion of a fetus before viability,” Sachs wrote.
However, since Planned Parenthood could not show how many “real-life women” would be affected by the reason ban, he said that he could not assess the harm to the public by letting the law go into effect.
Planned Parenthood’s chief medical officer, Dr. Colleen McNicholas, had 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 Down Syndrome diagnosis.
Planned Parenthood 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.
Sachs wrote that he believed prosecution or abortion-related “license controversies” to be “unlikely” throughout the duration of the case. He noted the enforcing authority — the circuit attorney for the city of St. Louis, Kim Gardner — sided with Planned Parenthood in issuing a preliminary injunction.
He did not weigh in on the Missouri attorney general’s ability to prosecute abortion-related offenses.
Sachs left the door open to considering a second request for a preliminary injunction from Planned Parenthood with more information about effect of the reason ban.
“Caution suggests I withhold a preliminary injunction against the anti-discrimination section, but remain open to an adequately supported renewed motion on this narrow issue,” Sachs said.
The attorney general’s office is reviewing Sachs’s decision, according to spokesperson Chris Nuelle.
Attorney General Eric Schmitt praised the decision to let the reason ban go into force.
“[A]s the father of a child with special needs, Attorney General Schmitt is particularly sensitive to suggestions that an unborn child who will have special needs is any lesser of a human being, and we’re glad that provisions relating to that issue were left in place in the judge’s ruling today,” Nuelle said in a statement.
In a joint statement, Planned Parenthood, along with its legal partners American Civil Liberties Union and its Missouri affiliate, applauded the judge’s action in stopping the gestational age ban and said it will continue its legal fight.
McNicholas said allowing the reason ban to go into effect will have a “measurable impact.”
“It requires physicians to interrogate patients and, in turn, destroys the foundation of trust essential in a health care setting,’ McNicholas said in the statement. “Missourians do not need or want politicians in their exam rooms. My patients deserve access to high-quality abortion care, and they deserve the space to make those decisions based on their values, life circumstances, support system, and faith, free of government scrutiny.”
The statement did not address whether Planned Parenthood will again seek a preliminary injunction on the reason ban.
Other than the reason ban, other parts of Missouri’s abortion law set to go into effect Wednesday include doubling the amount of medical malpractice insurance an abortion provider is required to have and mandating physicians who perform medication abortions to have “tail insurance,” which continues to cover them after they’ve retired or changed employers.
A provision requiring minors seeking abortions to notify both custodial parents was implemented upon Parson’s signature in May.