By Dave Andrusko
At 10:00 am today, the full (“en banc”) 8th Circuit Court of Appeals will take up the “Missouri Stands for the Unborn Act.”
Judge Howard Sachs struck down two sets of provisions: one that prohibits abortions when the abortionist knows it is sought because the baby has Down syndrome; the second would prohibit most abortions at eight, 14, 18 and 20 weeks of gestation.
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.
The decision by the full Eight Circuit to hear the case was surprising since neither the state Attorney General Schmitt, who had gone directly to the Supreme Court, nor the plaintiffs asked for a rehearing in front of the full eleven members, But it was very, very much welcomed.
The law is being defended on two separate tracks. One, with the 11 member 8th Court of Appeals, the second with an appeal directly to the Supreme Court.
Arguing on behalf of Attorney General Eric General today will be Solicitor General John Sauer.
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 hearing, which took place via videoconferencing, Missouri State Solicitor General John Sauer told the three judge 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.”