Missouri AG to appeal decision by appeals court panel not to reinstate law banning abortions based solely on diagnosis of Down syndrome

By Dave Andrusko

A split three-judge panel of the 8th Circuit Court of Appeals today upheld U.S. District Judge Howard F. Sachs’s injunction of “Missouri Stands For the Unborn Act,” passed in 2019, which, among other provisions, bans abortions when the sole reason is a prenatal diagnosis of Down syndrome. The lawsuit was filed by the American Civil Liberties Union and the Reproductive Health Services, which operates the St. Louis abortion clinic.

Missouri Attorney General Eric Schmitt immediately issued a statement vowing that the state will appeal to the U.S. Supreme Court.

“My son Stephen has shown me the inherent beauty and dignity in all life, especially those with special needs,” Schmitt said. “While we’re disappointed in the Eighth Circuit’s decision, their decision does provide an avenue for this case to be heard by the Supreme Court, and we plan to seek review in the Supreme Court. I have never and will never stop fighting to ensure that all life is protected.”

In the 2021 legislative session, a number of states passed laws against “discrimination-based” abortions, including those based solely on a prenatal diagnosis of Down syndrome.

“Governors in Arizona and South Dakota recently signed such bills into law, and similar measures are pending in North Carolina and Texas,” Jim Salter of the Associated Press reported. “Meanwhile, a federal appellate court said Ohio could begin to implement a 2017 law that has been on hold.

During the September 24 hearing, which took place via videoconferencing, Missouri State Solicitor General John Sauer told the panel , “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 Jane Kelly, Roger Wollman, and David 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.  Judge Kelly, who wrote the opinion and who was joined by Judge Wollman, “agreed with Planned Parenthood that the Down syndrome provision is a ban rather than a restriction,” according to Joe Harris of Courthouse News.

Judge David Stras began by noting that 

A preliminary injunction is hard to get, all the more so when the target is a democratically enacted state law.  The court makes it easy, however, by relaxing the rules to let Reproductive Health Services  have one, despite its failure to show a “threat of irreparable harm” from Missouri’s Down Syndrome Provision. I would apply the usual rules and vacate the injunction.

Later Judge Stras elaborates on the key requirement of the law — that the abortionist has “knowledge that a Down Syndrome diagnosis is the sole reason for an abortion.” [Dr. Colleen McNicholas is a Planned Parenthood abortionist who testified against the law.]

Dr. McNicholas all but admits in her declaration that she has no idea how many women, if any, seek an abortion solely for that reason. Consider her words carefully. In addition to never identifying any women who sought abortions “solely because of” a Down Syndrome diagnosis, she goes on to say that “there is generally no medical need for [her], or any other physician providing abortion care at [the clinic,] to know a patient’s reason for seeking an abortion or to distinguish between one particular fetal diagnosis or another in order to provide compassionate, safe abortion care.” If there is no medical reason to ask, and no evidence that the reason for seeking an abortion is routinely volunteered, then the statute itself cannot create the “threat of irreparable harm.” 

The future? As noted, Missouri Attorney General Schmitt  said he will appeal the appeals court decision to the Supreme Court. In addition, Salter ends his account by writing, “Last month, the Supreme Court voted 6-3 to take on a case about whether states can ban abortions before a fetus can survive outside the womb. Experts say the case could dramatically alter nearly 50 years of rulings on abortion rights.”