ST. LOUIS — A federal appeals court is deciding the fate of a Missouri law that puts sweeping restrictions on abortions, and a focal point of oral arguments on Tuesday was a provision prohibiting abortions based solely on a Down syndrome diagnosis.
HB 126 was adopted in 2019 would ban abortions at the eighth week of pregnancy. The full 8th U.S. Circuit Court of Appeals in St. Louis isn't expected to rule for several weeks. In June, a three-judge 8th Circuit panel upheld an injunction from U.S. District Judge Howard Sachs prohibiting Missouri from enforcing the law's provisions, but the full court decided to hear the case.
Missouri Solicitor General John Sauer cited high rates of abortions for fetuses with Down syndrome and noted that in some countries, those abortion rates are above 90%.
"This is the crisis against which Missouri enacted its Down syndrome provision that is before the court today," Sauer said.
The law prohibits abortions if Down syndrome is the sole reason for the procedure. But Planned Parenthood Federation of America attorney Susan Lambiase said doctors at Missouri's only abortion clinic, Reproductive Health Services in St. Louis, will likely avoid any abortions involving fetuses with Down syndrome for fear of the consequences. Those consequences potentially include loss of a doctor's medical license and the loss of the clinic's license.
"You're asking the doctors to take a risk that they cannot take," Lambiase said.
Sachs said in his 2020 ruling that he thought Planned Parenthood and the ACLU would likely succeed in their lawsuit challenging the law as unconstitutional. Similar laws have been struck down in North Dakota and Iowa.
Legislators who helped draft the Missouri law said it was meant to withstand court challenges, especially challenges to the timing of the ban. The law included a provision stating that if the eight-week ban was struck down, a series of less-restrictive abortion limits would kick in at 14, 18 or 20 weeks. But courts have blocked enforcement of all of those limits thus far.
The measure also includes exceptions for medical emergencies, such as when there is a risk of death or permanent physical injuries to "a major bodily function of the pregnant woman." But women who become pregnant after being raped or subjected to incest will not be allowed to abort after eight weeks. Women who terminate their pregnancies cannot be prosecuted under the law.
Attorney General Eric Schmitt wants the U.S. Supreme Court to decide the case. In a court filing in July, Schmitt, a Republican, said the Supreme Court should consider whether Missouri's restrictions are "reasonable regulations on abortion."
Schmitt also said the high court should use the case to decide whether to overturn its 1973 Roe v. Wade decision, which established a nationwide right to abortion at any point before a fetus can survive outside the womb, which is roughly around the 24th week.
On Tuesday, after the oral arguments, Schmitt held a news conference. There, he choked up talking about his stance.
"My son Stephen was diagnosed with a rare, rare genetic disease, tuberous sclerosis, which causes tumors to grow on his major organs. He is non-verbal. He is on the autism spectrum. I cannot simply imagine my world or my family's world without Stephen in it. That’s what we’re fighting for today, human beings and the sanctity of life," Schmitt explained.
In response, Reproductive Health Services of Planned Parenthood of the St. Louis Region and ACLU of Missouri sent this statement:
“HB126 is 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. 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. We’ll continue fighting for every Missourian — no matter your race, creed, politics, income, identity — to access basic health care including abortion care.”
After the hearing, 5 On Your Side spoke to Yamelsie Rodriguez, the president and CEO of Reproductive Health Services of Planned Parenthood of the St. Louis Region.
"The same politicians who want to make personal decisions on your body are the same anti-mask politicians who say they have the right to make personal decisions about their bodies," Rodriguez said. "I think we can all agree that people with Down syndrome can live full lives. So let’s be clear, this bill isn't about empowering individuals with disability. We need to understand the true intent of this is to hand over power and control to politicians who want to make those decisions for me, you and all of us in Missouri."
HB126 could impact 1.1 million women of reproductive age in Missouri and it could strip way the one abortion clinic left in Missouri.
The appeals court case over the Missouri law comes weeks after the U.S. Supreme Court allowed a Texas law that bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks into a pregnancy.
Missouri State Representative Mary Elizabeth Coleman also released a statement responding to the Texas ban and creating her own bill:
“While legal challenges continue, I applaud the life-affirming decision of the Supreme Court to allow the Texas Heartbeat Act to move forward, but the fight for life continues. As an architect of Missouri’s HB 126, I am confident that the 8th Circuit en banc review will uphold the Missouri Stands For the Unborn Act. Furthermore, I commit that the first bill I will file in the upcoming session will ensure Missouri's unborn receive the same protection as the unborn in Texas. We will continue the fight for the unborn in Missouri and we will use every available procedural and legal tool to protect women and children from abortion.”
The Supreme Court also has agreed to consider allowing the enforcement of a Mississippi law that would ban abortion after 15 weeks of pregnancy, which could dramatically alter nearly 50 years of court precedent on abortion rights.