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Full Eighth Circuit to Give Missouri Abortion Law’s ‘Down Syndrome Provision’ One More Chance


The U.S. Court of Appeals for the Eighth Circuit granted a full rehearing of a case over the “Down Syndrome Provision” of Missouri’s restrictive abortion law. The court’s order was made sua sponte, meaning that neither party requested the ruling and instead, the court ruled in favor of its own motion.

The case is a challenge to the Missouri’s 2019 House Bill 126 (HB 126), which prohibits medical providers from performing abortions when the provider knows that the sole 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 of Reproductive Services of Planned Parenthood of the St. Louis region waged the lawsuit on the grounds that HB126 violated Constitutional guarantees of reproductive freedom.

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

In Missouri’s petition for certiorari, Missouri Governor Michael L. Parson (R) and State Attorney General Eric Schmitt (R) make the case for HB126 as a law primarily focused on rooting out longstanding discrimination against individuals with Down Syndrome. Characterizing the law as “a valid, reasonable regulation of abortion” that seeks to forbid “eugenic abortion,” Missouri urges SCOTUS to see 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 establishment’s approach to Down syndrome over the last century has been dominated by discrimination.” This discrimination was rooted in the early twentieth-century eugenic movement’s rejection of the “feeble-minded” as “unfit” and worthy of “elimination.”

It continues, addressing the urgency of the matter from Missouri’s perspective:

Further, addressing this question presents a matter of great urgency. As noted above, the abortion rate for children with Down syndrome in America is between 67 and 93 percent. That presents an existential crisis for the entire Down syndrome community, which is already on the verge of elimination in other Western countries.

Despite neither party requesting a full rehearing at the circuit court level, the June 9th order is vacated, and the case will be set for oral arguments before the en banc Eighth Circuit court.  Although the parties could eventually appeal the full Eighth Circuit’s ruling to the Supreme Court, this rehearing adds significant complications to that process.

Part of the Supreme Court’s calculus in choosing cases to review contemplates the lower court proceedings. SCOTUS is often less inclined to review cases that have already been argued before a full complement of the circuit court. Furthermore, there is also a chance that the full Eighth Circuit would rule differently on the case than the three-judge panel did.

The June 9 panel decision included an opinion authored by the sole Barack Obama appointee, Judge Jane L. Kelly. Judge David Stras, a Donald Trump appointee, joined with Kelly in the judgment, but dissented on much of the court’s reasoning. Judge Roger Leland Wollman, a Ronald Reagan appointee, voted without comment to overturn the lower decision.

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

Judge Steven Colloton (a George W. Bush appointee) was the only one who did not participate in the ruling to grant a full rehearing of the case.

[image via Michael B. Thomas/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos