8th Circuit to hear challenge to “Missouri Stands For the Unborn Act”

By Dave Andrusko

On Wednesday a three judge panel of the 8th U.S. Circuit Court of Appeals heard arguments on an injunction halting enforcement of three 2019 pro-life Arkansas laws. Today another three judge panel of the 8th U.S. Circuit will consider a challenge to “Missouri Stands For the Unborn Act,” another act passed in 2019.

As NRL News Today readers will recall, Arkansas Attorney General Leslie Rutledge was in court requesting that a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis vacate U.S. District Judge Kristine Baker’s injunction and allow three laws passed in 2019 to be enforced.  The three 2019 laws are 

#1 is Act 493, which prohibits abortions after 18 weeks of pregnancy.

#2  is Act 619 which bans abortions  “with the knowledge” that a woman is seeking it “solely on the basis” of a prenatal diagnosis of Down syndrome. 

#3 is Act 700 which requires doctors who perform abortions in Arkansas to be board-certified or board-eligible OB-GYNs.

Just a few words about Wednesday’s court action, based largely on the account written by Tony Holt of the Arkansas Democrat-Gazette.

Holt reports that Kendall Turner, the attorney representing the plaintiffs –Little Rock Family Planning Services clinic and Tom Tvedten, one of the abortionists at the clinic—told  Circuit Judges Loken, Shepherd, and  Erickson that “the state’s pursuit to ban abortions prior to viability is ‘flatly unconstitutional’ during her oral argument Wednesday.”

Deputy Solicitor General Vincent Wagner argued for Attorney General Rutledge, who technically is the defendant in the case. 

“The district court simply didn’t do the work necessary to find that there was an undue burden ban in this case,” Wagner said.

‘The plaintiffs have put forward no evidence whatsoever of the fraction of women who would face a substantial obstacle as a result of [this] ban,” he argued.

As is typically the case, the judges did not give a date when they will rule on the arguments.

Today. Circuit Judges Kelly, Wollman and Stras will hear arguments for and against the “Missouri Stands For the Unborn Act” (HB 126), which Missouri Right to Life described as “groundbreaking legislation that will save lives and set the standard for pro-life legislation nationwide.”

Among the many provisions included in HB 126 is a ban on abortion when the baby reaches 20 weeks gestation, a developmental point by which the child can experience pain; a requirement that a minor to inform both custodial parents when she is seeking an abortion; bans abortions on the basis of race, sex or if the baby has Down syndrome; and the establishment (according to the Associated Press) of “a so-called ‘trigger clause that would completely ban abortion, except in the case of a medical emergency, in Missouri if Roe v Wade is overturned by the Supreme Court.”

HB 126 also was written in a manner that should a court overturn the ban on early abortions, there is also a prohibition of abortions at 14, 18, and 20 weeks gestation. 

A three-judge panel was to hear the case in mid-April 2020, but arguments were delayed because of the pandemic. Since then the Supreme Court decided against Louisiana’s law requiring abortionists to have admitting privileges within 30 miles of where they abort women,  in cases of emergency.

Making the case even more involved, Chief Justice John Roberts agreed with the outcome in the Louisiana case but not its reasoning. As NRL News Today reported, in reversing a lower court ruling that struck down part of an Arkansas law, the 8th Circuit cited Roberts’ reasoning.

How that will affect or influence the panel vis a vis the Missouri law is a subject of wide conjecture.