Missouri AG vows to take abortion-law injunction to U.S. Supreme Court

Missouri Attorney General Eric Schmitt is vowing to take the fight over a 2019 Missouri law imposing abortion restrictions to the U.S. Supreme Court after a federal appeals court upheld an injunction blocking their enforcement. 

On June 9, in a split decision, a panel of the 8th U.S. Circuit Court of Appeals upheld a lower-court order granting preliminary injunctions that bar the state from enforcing prohibitions on abortions after eight weeks of pregnancy and also in cases of woman seeking to abort because of Down syndrome or potential Down syndrome in the unborn child. 

In 2019, the state legislature passed the restrictions in House Bill 126, which Gov. Mike Parson signed into law. 

In a statement, Schmitt referred to his son, who is on the autism spectrum and is non-verbal in addition to having a rare genetic condition and epilepsy.

“My son Stephen has shown me the inherent beauty and dignity in all life, especially those with special needs,” he said. “While we’re disappointed in the 8th Circuit’s decision, their decision does provide an avenue for this case to be heard by the Supreme Court, and we plan to seek review in the Supreme Court. I have never and will never stop fighting to ensure that all life is protected.”

In a statement, Tony Rothert, legal director of the ACLU of Missouri, which represented the plaintiffs in the case, Reproductive Health Services of Planned Parenthood of the St. Louis Region and its Chief Medical Officer Dr. Colleen P. McNicholas, applauded the ruling.  

“Missourians are fair and reasonable folks who understand that we are not a free people if the government can ban abortion,” he said. “We share their relief that politicians’ attempt to disguise a ban by pretending it is a minor regulation did not fool the Court of Appeals.” 

It’s not yet clear where the case fits into ongoing litigation before the high court. In May, the U.S. Supreme Court agreed to review in its upcoming term a Mississippi law banning abortions after 15 weeks of pregnancy. 

A ruling by the court’s 6-3 conservative majority in that case has the potential to roll back abortion rights in the U.S. by giving states more latitude to regulate abortion. 

The state argued that the gestational age provisions of HB 126 do not ban pre-viability abortions, or abortions that take place before 20 weeks, but instead merely regulate them. 

Judge Jane Kelly said the 8th Circuit rejected a similar argument for an Arkansas statute prohibiting abortions at 12 weeks or later where the fetus has a detectable heartbeat. 

The court held in the Arkansas case that because the law prohibited women from making the decision to terminate a pregnancy at a point before viability, it amounted to a ban, not a regulation, she said. 

“These provisions do not merely have ‘the incidental effect of making it more difficult or more expensive to procure an abortion’ before viability,” she said, referring to HB 126. “Instead, the Gestational Age Provisions are bans, and we agree with the district court that RHS is likely to succeed on the merits of its claim.” 

Similarly, she said the Down syndrome provision is unlike a regulation in that it does not set a condition that makes the performance of a pre-viability abortion lawful.  

“Rather, it bans access to an abortion completely,” she said. 

Kelly was joined by Judge Roger L.  Wollman. 

Judge David R. Stras dissented in part. He said he would vacate the injunction on the Down syndrome provision because RHS failed to show a threat of irreparable harm from the law. 

He additionally said he would conclude the provision is a regulation, not a ban. 

“As long as a woman has at least two reasons for seeking an abortion, or her provider never knows that a positive Down Syndrome diagnosis, test, or screening is her sole reason for getting one, ‘the ultimate decision’ still lies with her,” he said. 

The cases are Reproductive Health Services of Planned Parenthood of the St. Louis Region Inc. et al. v. Parson, 19-2882 and 19-3134.