Epidemic of abortions targeting children with Down syndrome for elimination “is a crisis,” Missouri Solicitor General tells appeals court

By Dave Andrusko

On Thursday, a three judge panel of the 8th U.S. Circuit heard the Missouri Solicitor General defend “Missouri Stands For the Unborn Act,” passed in 2019, described by Missouri Right to Life as “groundbreaking legislation that will save lives and set the standard for pro-life legislation nationwide.”

The hearing on HB 126, which took place via videoconferencing, came one day after a different three judge panel of the 8th U.S. Circuit heard pro and con arguments on an injunction halting enforcement of three 2019 pro-life Arkansas laws.

Reporting for Courthouse News (“Missouri Defends Abortion Restriction as Way to Save Children With Down Syndrome”), Joe Harris extensively quoted Missouri State Solicitor General John Sauer who told the panel yesterday, “A radical reduction in the number of the class of people with Down syndrome would inflict an incalculable loss in our society.”  

Sauer also told Circuit Judges Kelly, Wollman, and Stras,  “People with Down syndrome are literally one generation away from complete elimination.”

Planned Parenthood attorney Claudia Hammerman maintained that HB 126  is incompatible with the 1992 Casey v. Planned Parenthood decision. 

HB 126 includes

  • A ban on abortions when the unborn child has been diagnosed with Down syndrome.
  • Tiered prohibitions of most abortions of unborn children at eight, 14, 18 and 20 weeks gestational age.

Sauer challenged how opponents of the law were interpreting Casey, Harris reported.

U.S. Circuit Judge Jane L. Kelly, the only judge in the Eighth Circuit appointed by a Democratic president — Barack Obama — questioned Sauer on how the state’s restrictions on Down syndrome abortions would square with Casey.

Casey did not decide whether a state may prohibit an abortion for a discriminatory reason,” Sauer said.

Tracking Hammerman’s argument, Judge Kelly also questioned if HB 126 “interfered with a women’s right to a pre-viability abortion.”

“I believe Casey says the state cannot present a substantial obstacle to a woman’s decision to bear or (abort) a child,” Sauer said. “It does not say there is right to bear or (abort) a particular child, a child with preferable characteristics. There’s nothing anywhere in Casey that says you have a right to a child with these particular characteristics.”

According to Harris, when Judge Stras asked “if there was any consideration given to other disabilities and why just Down syndrome,” Sauer said there is nothing in the legislative record mentioning other diseases. But he noted

“I’m not aware of anything like the evidence we have of any other class of people on the brink of elimination like the evidence we have in this case,” Sauer said.

The state’s attorney pointed out abortion rates for children with Down syndrome in Denmark, South Korea and the United Kingdom approach 90%. Sauer said the United States’ numbers are somewhere between 67 and 93%. 

Sauer added,

“The epidemic of abortion targeting children with Down syndrome for elimination fully because of their disability, not for any other reason, is a crisis.”