The fate of Missouri's ban on abortion after eight weeks of pregnancy, with no exception for rape or incest, rests in the hands of a panel of federal judges.
Arguments on Tuesday before the Eighth U.S. Circuit Court of Appeals in St. Louis, and questions from the judges, focused almost exclusively on another provision of the 2019 law criminalizing abortions if they are being sought solely because of a prenatal diagnosis, test or screening indicating Down Syndrome.
The attorney general's office's John Sauer argued the law doesn't ban pre-viability abortions, but merely regulates them.
"The community of people with Down Syndrome is just one generation away from complete elimination due to the practice of eugenic abortion," Sauer told the judges. "This is a crisis against which Missouri enacted the provision before the court today."
Susan Lambiase, attorney for Planned Parenthood Federation of America, pushed back, saying the law is unconstitutional because it amounts to a ban on abortion in Missouri.
"The blunt instrument of banning abortions based on a person's personal reasons is not permitted under the constitution," she said.
The U.S. Supreme Court has previously recognized, Lambiase said, "a right to choose abortion before viability as one of the most intimate and personal decisions a person may make in a lifetime. A choice essential to personal dignity and autonomy."
She also pushed back on the idea, mentioned by Sauer and one of the judges, these abortions constitute eugenics.
"It's not eugenics when a person is making a decision about whether or not she can sustain her pregnancy or chooses to terminate it," Lambiasie said. "There are myriad factors, there may be different reasons, and it's not because that person is trying to do away with a particular disability."
Sauer said abortion rights supporters are "stretching really hard to shoehorn this into the 'ban' category, when it's clearly a regulation."
Neither the Down Syndrome provision nor the eight-week gestational provisions should be considered a ban, Sauer said.
The lawsuit is playing out as the U.S. Supreme Court prepares to hear arguments Dec. 1 in a lawsuit that threatens to overturn the landmark 1973 ruling in Roe v. Wade that legalized abortion.
The upcoming case, Dobbs v. Jackson Women's Health Organization, stems from a Mississippi law that bans most abortions after 15 weeks. It has been blocked by a lower federal court.
The nation's top court announced in May that it would take up the Mississippi case. Since that announcement, the justices also voted in a 5-4 decision against preventing a more-strict Texas law from taking effect.
In Missouri, several GOP lawmakers were inspired by the Supreme Court declining to block the Texas law and plan to introduce a similar bill when the Legislature reconvenes in January.
Under the Missouri law, which legislators approved and Gov. Mike Parson signed in 2019, physicians who perform abortions after the eight-week gestational period could face five to 15 years in prison. Women who terminate their pregnancies would not be prosecuted.
Additionally, anyone participating in an abortion sought solely because of a prenatal diagnosis of Down Syndrome would be subject to civil penalties, including a loss of professional licenses.
The law has not been enforced because it was challenged by Reproductive Health Services of Planned Parenthood, based in St. Louis, which operates the state's sole remaining abortion clinic.
In June, a three-judge panel of the Eighth U.S. Circuit Court of Appeals agreed with Planned Parenthood's argument since there is nothing an individual can do under Missouri's law to obtain an abortion after the eight-week cutoff, the law is a ban and thus "categorically unconstitutional."
A month later, however, the court made the unusual decision to on its own motion take up the case before all 18 judges of the court.
The Missouri Independent is a nonprofit, nonpartisan news organization covering state government and its impact on Missourians.