Eighth circuit to hear again Missouri’s provision on Down’s syndrome abortion


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The United States Court of Appeals for the Eighth Circuit granted a full rehearing of a case concerning the “Down syndrome provision” of Missouri’s restrictive abortion law. The court order has been issued spontaneous sua, which means that neither party requested the decision and instead the court ruled in favor ex officio.

The case is a challenge to 2019 Missouri Bill 126 (HB 126) which prohibits health care providers from performing abortions when they know the only reason for the abortion is that the pregnancy at stake may result in the birth of a child with Down Syndrome. HB 126 also prohibits providers from performing abortions after eight weeks of pregnancy.

A group of physicians and staff from the Planned Parenthood Reproductive Services in the St. Louis area filed a lawsuit alleging that HB126 violated constitutional guarantees of reproductive freedom.

The law challengers obtained a preliminary injunction at the district court level in mid-2019; the district court found that the Down syndrome provision and the gestational age provisions were invalid under Planned Parenthood v. Casey and Roe vs. Wade. Missouri appealed the decisions to the United States Court of Appeals for the Eighth Circuit, and on June 9, 2021, the Eighth Circuit upheld the district court’s orders in a 2-1 decision. Missouri immediately sought review from the United States Supreme Court.

In the Missouri petition for certiorari, the governor of Missouri Michael L. Parson (R) and State Attorney General Eric schmitt (R) are advocating for HB126 as a law primarily focused on eradicating long-standing discrimination against people with Down syndrome. Calling the law a “valid and reasonable regulation of abortion” which seeks to prohibit “eugenic abortion,” Missouri urges SCOTUS to view the law as protective rather than restrictive.

From the petition:

Our nation has a recent, shameful and continuing history of medicalized discrimination against people with Down syndrome. “[T]he history of the medical approach to Down syndrome over the past century has been dominated by discrimination. This discrimination was rooted in the rejection by the early 20th century eugenics movement of the “weak-minded” as “unfit” and worthy of “elimination”.

He continues, addressing the urgency of the matter from a Missouri perspective:

In addition, there is great urgency to answer this question. As noted above, the abortion rate in children with Down syndrome in America is between 67 and 93 percent. This presents an existential crisis for the entire Down syndrome community, which is already on the verge of being eliminated in other Western countries.

While neither party has requested a full new circuit court hearing, the June 9 order is set aside and the case will be settled for pleadings in the Eighth Circuit en banc court. While the parties may eventually appeal the full Eighth Circuit decision to the Supreme Court, this new hearing adds significant complications to this process.

Part of the Supreme Court’s calculation in choosing which cases to consider contemplates lower court proceedings. SCOTUS is often less inclined to consider cases that have already been argued before a full complement of the circuit court. In addition, it is also possible that the Eighth Full Circuit will rule on the case differently than the three-judge panel.

The June 9 panel decision included an opinion written by the sole Barack obama appointed judge Jane l kelly. Judge David Stras, a Donald trump person named, joined Kelly in the judgment, but disagreed with much of the court’s reasoning. Judge Roger leland wollman, a Ronald reagan nominated, voted without comment to overturn the lower decision.

The jurisdiction of the Eighth Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. The current composition of the circuit court includes 18 judges: three appointed by Reagan, three appointed by George HW Bush, seven appointed by George W. Bush, one nominated by Obama, four nominated by Trump.

Judge Steven colloton (a person named by George W. Bush) was the only one who was not involved in the decision to grant a full rehearing of the case.

[image via Michael B. Thomas/Getty Images]

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