By Dave Andrusko
On June 9, after a three-judge panel of the 8th Circuit Court of Appeals upheld U.S. District Judge Howard F. Sachs’s injunction of “Missouri Stands For the Unborn Act,” pro-life Missouri Attorney General Eric Schmitt immediately vowed to appeal.
Yesterday Schmitt’s office asked the Supreme Court to uphold the 2019 law which 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.
In a statement accompanying his request for a writ of certiorari in Schmitt v. Reproductive Health Services of Planned Parenthood of the St. Louis Region, Schmidt said
“My son Stephen [who has a rare genetic condition called tuberous sclerosis] has shown me the inherent beauty in life, and he brings immense joy and love to his loved ones and those around him. Since taking office, I’ve fought to protect all life, including the unborn. A pre-natal diagnosis of Down syndrome should not be a death sentence.”
According to the Attorney General’s office, the Petition “presents three questions for the Supreme Court’s review”:
- Whether Missouri’s restriction on abortions performed solely because the unborn child may have Down syndrome is categorically invalid under Casey and Roe v. Wade, 410 U.S. 113 (1973), or whether it is a valid, reasonable regulation of abortion that seeks to prevent the elimination of children with Down syndrome through eugenic abortion?
- Whether Missouri’s restrictions on abortions performed after eight, fourteen, eighteen, and twenty weeks’ gestational age are categorically invalid, or whether they are valid, reasonable regulations of abortion that advance important state interests?
- Whether the “penumbral” right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), and partially reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), should be overruled?
As NRL News Today reported when the 8th Circuit panel voted to uphold Judge Sach’s injunction, a number of states passed laws against “discrimination-based” abortions, including those based solely on a prenatal diagnosis of Down syndrome, during the 2021 legislative session.
“Governors in Arizona and South Dakota recently signed such bills into law,” 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.
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.”
Judge Sachs initially allowed the state to enforce the provision banning abortions based on a pre-natal diagnosis of Down Syndrome but later reversed his ruling. Schmitt’s office then appealed to the Eighth Circuit Court of Appeals, which affirmed that ruling. On Thursday, the Missouri Attorney General’s Office asked the Supreme Court of the United States to hear the case.
“Previously, Attorney General Schmitt led a 22-state coalition in filing an amicus brief in support of a similar law banning abortions based solely on a pre-natal Down syndrome diagnosis in Arkansas.”