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Appeals Court Considers Fate Of Missouri’s Law Banning Abortions After A Down Syndrome Diagnosis

 An abortion protester in St. Louis.
Carolina Hidalgo
St. Louis Public Radio
An abortion protester in St. Louis.

The Down syndrome provision is part of a Missouri law enacted in 2019 that prohibits abortions at eight, 14, 18 and 20 weeks of pregnancy. It has yet to take effect, after being blocked by courts.

A federal appeals court heard arguments Tuesday on whether to uphold Missouri’s law barring abortions based solely on a diagnosis of Down syndrome.

In 2019, Senior U.S. District Judge Howard Sachs blocked the state from enforcing the ban. Missouri appealed to the 8th Circuit Court of Appeals, and a three-judge panel upheld Sachs’ ruling. But in a rare move, the full court agreed to hear the case.

The Down syndrome provision is part of a Missouri law enacted in 2019 that prohibits abortions at eight, 14, 18 and 20 weeks of pregnancy. Under the law, if the eight-week ban is struck down by a court, the 14-week ban takes effect ,and so on with the other bans.

The law also has a “non-discrimination” section that prohibits abortions on the basis of race, sex or a Down syndrome diagnosis.

Sachs also blocked the gestational prohibition, which would have banned the overwhelming majority of pre-viability abortions in Missouri, in violation of current U.S. Supreme Court precedents.

The plaintiff in the case is Reproductive Health Services in St. Louis, the state’s only remaining abortion clinic, which sued to overturn both provisions of the law. At oral arguments Tuesday, a lawyer for the organization — an affiliate of Planned Parenthood — argued that upholding the law “would deny abortion access to patients in Missouri, clearly a constitutional harm.”

The clinic's lawyer, Susan Lambiase, noted that the Eighth Circuit upheld a preliminary injunction blocking a similar law in Arkansas, which prohibited abortions based on a fetal diagnosis of Down syndrome.

One of the judges asked if the law is technically a "ban," or merely a regulation imposing conditions on abortion. But Lambiase argued that it is, in fact, a ban.

“A ban is a law that prohibits any woman from making the choice, for making the ultimate decision whether to terminate her pregnancy pre-viability,” Lambiase said.

In its brief urging the court to uphold the 2019 law, the Missouri Attorney General’s office described abortions of Down syndrome-diagnosed fetuses as “eugenic abortion” and argued that persons with Down syndrome “contribute unique beauty and diversity to society.”

“Yet they are only one generation from complete elimination,” the brief stated, urging the court to strike down Sachs’ preliminary injunction.

In a news release following the arguments, Missouri Attorney General Eric Schmitt defended the ban and said that individuals with Down syndrome “make the world a better place simply by walking the earth and being among us."

Schmitt is seeking the Republican nomination for the U.S. Senate seat being vacated by Sen. Roy Blunt.

“I’m going to fight that battle every day and am hopeful the Court will agree," he wrote.

Reproductive Health Services issued a news release calling the law “a sweeping abortion ban that challenges who has the power and control to decide what’s best for your body, life, family, and future.”

“We believe reproductive health care decisions are personal and should be made by individuals, not politicians,” it said. “Attorney General Eric Schmitt’s job is to defend Missourians’ constitutional rights. Instead, he’s abusing his office to advance his own political interests and personal beliefs.”

The U.S. Supreme Court agreed to hear arguments in December on a Mississippi law banning abortions after 15 weeks of pregnancy, and whether to overturn Roe v. Wade, the 1973 decision finding women have a constitutional right to terminate pregnancies before the fetus is viable.

Dan Margolies has been a reporter for the Kansas City Business Journal, The Kansas City Star, and KCUR Public Radio. He retired as a reporter in December 2022 after a 37-year journalism career.
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