Judge strikes ban against “discrimination-based” abortion

By Dave Andrusko

On Tuesday, just eight hours before scheduled implementation, a federal judge, appointed by former President Barack Obama, put a major portion of an omnibus Arizona pro-life bill on hold. Bans on “reasons-based” (or ‘discrimination-based”) abortion such as Down syndrome have offered the federal judiciary a chance to rethink the absence of any limitation on abortion. 

Arizona’s SB 1457 gave an unsympathetic U.S. District Judge Douglas Rayes a chance to reconsider whether the state may forbid an abortionist from knowingly performing an abortion because the child has been prenatally diagnosed with a genetic anomaly, most often Down syndrome. Arizona already prohibits abortions because of an unborn baby’s race or sex.

Meanwhile, last Tuesday, Missouri Attorney General Eric Schmitt’s office defended the “Missouri Stands for the Unborn Act” in front of the full Eighth Circuit Court of Appeals. The law includes a provision which protects a child from abortion when the abortionist knows this is the reason the abortion is being performed,

Judge Rayes showed little patience for the state of Arizona defense of SB 1457. “The mechanism Arizona has chosen is not designed to encourage women to choose childbirth,” Rayes wrote in the 30-page decision. “It is designed to thwart them from making any other choice… Arizona may not further its interest by erecting a substantial obstacle in the paths of women who have chosen to terminate their pre-viability pregnancies, which is what Arizona has done here.”

By contrast, attorneys for the state argued (a) that the law advances Arizona’s interest in protecting the disability community from discrimination; (b) prevents abortionists from subtlty coercing women into aborting babies believed to have “genetic abnormality”; and (c) “upholding the integrity of the medical profession.”

Judge Rayes did allow a “personhood” provision to pass mustard. This includes a legislative declaration that Arizona laws recognize that an unborn child has “all rights, privileges and immunities available to other persons, citizens and residents of this state.”

In last week’s hearing before the 11 member 8th Circuit, the judges heard how, in 2019, a federal judge left in tact, and then later blocked, the provision of HB126 that prohibited abortions based solely on a pre-natal Down syndrome diagnosis. The Missouri Attorney General’s Office appealed to the Eighth Circuit Court of Appeals, and that appeal was denied. However, in a rare move, the Court granted an en banc review, and oral arguments in that appeal occurred earlier.

Following the September 21 hearing Attorney General Schmitt said 

he would “fight that battle every day” to eliminate abortions on the basis of Down syndrome, and said he was “hopeful that the court will agree.”

The state “is defending all aspects of the law,” Schmitt said, but said the focus on the Down syndrome provision was “because this a relatively new issue before the court.”

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