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En banc Eighth Circuit considers 2019 Missouri law against abortions after Down Syndrome diagnoses

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In 2019, Missouri passed two laws sanctioning doctors who provide abortions after eight weeks of pregnancy or when the patient wants an abortion because the fetus has been diagnosed with Down Syndrome.

A federal judge granted a preliminary injunction to stop the law from taking effect. And a three-judge panel of the Eighth Circuit Court of Appeals upheld that injunction.

Now the state of Missouri has asked all judges in the Eighth Circuit to review that decision. Oral arguments were heard on September 21.

At oral arguments before the full Eighth Circuit, Missouri Solicitor General John Sauer said his state does not ban abortions of fetuses diagnosed with Down Syndrome. He said it applies only if the doctor knows or has been told that the diagnosis is the patient’s sole reason for having an abortion.

Sauer said this distinction makes Missouri law a regulation against discrimination. He compared it to the federal law prohibiting the hiring or firing of employees on a discriminatory basis. He said federal law does not prohibit the act of hiring and firing, just as Missouri’s law does not prohibit abortion.

Susan Lambiase said the state can regulate discrimination, but it can’t interfere with a patient’s personal and intimate decision-making.

Lambiase represents Reproductive Health Services of St. Louis, the only provider in Missouri for pre-viability elective abortions.

She told the appellate court that Missouri law threatens doctors with lawsuits and loss of their license to practice. She said this threat prevents doctors from taking the risk and leaves these patients unable to obtain an abortion in Missouri.

Lambiase said under 1992 precedent, this result is a ban, not a regulation.

“Casey has said, and decades of precedent before that says before viability, no state interest is strong enough to prohibit abortion. No state interest,” Lambiase told judges.

The Eighth Circuit’s opinion will apply to seven states, including South Dakota, where the 2021 legislature passed a similar law regarding abortions after Down Syndrome diagnoses. In South Dakota, doctors can face criminal prosecution, and doctors and the facility can be sued by the patient or by the survivors of the patient or the fetus.

The U.S. Supreme Court is hearing arguments on another Missouri abortion case, Dobbs v. Jackson Women’s Health Organization, on Dec. 1. In that case, Missouri set a deadline for viability at 15 weeks, and the state is asking the high court to overturn Roe v. Wade and Planned Parenthood v. Casey, two precedents establishing the constitutional rights of patients.

A Texas law setting a deadline of viability at six weeks is undergoing review at the state level, and the Department of Justice filed suit earlier this month to seek a federal injunction of that law.