8th Circuit surprisingly decides to revisit panel decision overturning “Missouri Stands For the Unborn Act”

By Dave Andrusko

In a surprise development, on July 13,  the 8th U.S. Circuit Court of Appeals granted an “en banc” (all judges participating) rehearing of a June decision by a divided panel that prevented the state of Missouri from enforcing a law that makes it unlawful for a person to “perform or induce an abortion on a woman if the person knows that the woman is seeking the abortion solely because of a prenatal diagnosis, test, or screening indicating Down Syndrome or the potential of Down Syndrome in an unborn child.” 

Surprising—since neither the state (pro-life Attorney General Eric Schmitt went directly to the Supreme Court) nor the plaintiffs asked for a rehearing in front of the full eleven members—but very, very much welcomed.

As NRL News Today reported, on June 9th the three-judge panel consisting of Jane Kelly, Roger Wollman, and David Stras, upheld U.S. District Judge Howard F. Sachs’s injunction of “Missouri Stands For the Unborn Act,” passed in 2019. The law bans abortions when the sole reason is a prenatal diagnosis of Down syndrome and also limits most abortions after eight, 14, 18, and 20 weeks of gestation. The lawsuit was filed by the American Civil Liberties Union and the Reproductive Health Services, which operates the St. Louis abortion clinic.

Pro-abortionists were likewise caught off guard and were aghast. The following thread from Imani Gandy whose Twitter handle is @AngryBlackLady explains the background and why pro-abortionists should very nervous

Here’s the real kick in the pants: The 8th Circuit has 11 judges. 10 are Republicans—4 appointed by Trump—and 1 is an Obama appointee. Who wrote the panel decision? The Obama appointee. So…

basically there’s no reason for the 8th Cir to rehear this en banc unless they’re going to go rogue and ignore well-settled law. because these bans are unconstitutional.. at least for now. and as always ABORTION IS LEGAL IN ALL 50 STATES. for now.

Ok so not everyone knows the difference between a panel decision and an en banc decision. When a litigant appeals a case to the circuit court, a three judge panel is assigned the case and the panel makes a ruling either in favor or against the litigant that appealed.

If the litigant that loses the appeal thinks they might get a more favorable ruling from the judges on the circuit court who WEREN’T on the panel, the litigant can ask for a rehearing en banc, or “in full” and argue the case before the full court.

In this instance, the 8th Circuit up and decided to rehear the case en banc on its own. Nobody asked them to. And while that’s not necessarily unusual, it is here. That’s because this case involves well-settled precedent and clearly unconstitutional previability abortion bans.

In sum, panel decision = decision from a panel of the court of appeals, usually three judges en banc decision = decision from the full court of appeals Now you’re ready to take the bar. (j/k no you’re not and in any event don’t do it it’s terrible)

Gandy is overreacting, but the decision by the full circuit to rehear the case is extremely encouraging.