Federal appeals court considers lifting injunction on Missouri’s restrictive abortion law
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.”
BEHIND THE STORY
MOREThe Bigger Picture: Missouri
Since the U.S. Supreme Court’s 1973 Roe v. Wade decision, which established a constitutional right to abortion, Missouri lawmakers have steadily tightened access to the procedure. There is just one clinic in the state — a Planned Parenthood clinic in St. Louis — that performs abortions. In 2019, Missouri revoked the clinic’s license following an inspection that turned up complications in four surgical abortions. An administrative law judge ruled that the clinic was wrongfully denied the license.
In 2019, Gov. Mike Parson signed a law criminalizing abortions after eight weeks of pregnancy, with no exceptions for rape or incest. A federal judge blocked the measure pending resolution of a lawsuit filed by Planned Parenthood. A three-judge panel from the 8th Circuit Court of Appeals affirmed that decision but the full court has decided to reconsider the case. It could lift the injunction against all or part of the law.
In the Missouri General Assembly, clashes over abortion cross a range of issues. While Planned Parenthood is prohibited from using Medicaid funds for abortions except when the life of the mother is at risk, Republicans attempted earlier this year to bar the organization from receiving Medicaid dollars for all non-abortion services it provides to low-income clients.
Some Missouri lawmakers have expressed interest in a new Texas law that bans abortion after six weeks of pregnancy and authorizes private citizens to sue abortion providers who break the law and others who aid women seeking to terminate their pregnancies. Rep. Mary Elizabeth Coleman, an Arnold Republican, has promised to introduce a version of the legislation next year. Read more by clicking the arrow in the upper right.
The Bigger Picture: Kansas
Kansas has long been an epicenter of anti-abortion activism. In July 1991, Operation Rescue brought thousands of protesters to Wichita for the “Summer of Mercy,” a campaign of daily civil disobedience. It focused heavily on a clinic run by Dr. George Tiller, one of a handful of physicians who performed late-term abortions. In June 2009, he was murdered by an anti-abortion extremist.
In 2015, then-Gov. Sam Brownback signed a law banning dilation and evacuation, a second-trimester procedure described by anti- abortion activists as “dismemberment abortion.”
Challenges to the law reached the Kansas Supreme Court, which ruled in 2019 that the state constitution gave women “a fundamental right” to make decisions about their own bodies, including whether to terminate a pregnancy.
The Kansas Legislature, controlled by a Republican supermajority, responded by placing a proposed constitutional amendment on the Aug. 2022 ballot. The “Value Them Both” amendment would eliminate the state constitutional right to an abortion but not impose an outright ban.
If approved, however, it would allow the Legislature to pass abortion restrictions to the extent permitted by the U.S. Constitution, and lay the groundwork for a future ban if Roe v. Wade is overturned.
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.
This story was originally published September 21, 2021 at 12:47 PM.