The abortion-rights landscape in Missouri got a little murkier Tuesday when a federal judge blocked the state’s extreme eight-week abortion ban ruled a pre-viability ban based on the sex, race, or Down syndrome diagnosis of a fetus could take effect.
The decision intensifies the legal fight over just when and under what pretenses states can ban abortions before viability. And conservatives on the U.S. Supreme Court may soon get their chance to join in.
First, the good news. Missouri was on the brink of effectively outlawing all abortions with HB 126, which was set to take effect Wednesday. Signed into law by Gov. Mike Parson (R) in May, the law’s gestational age bans make it a crime to perform an abortion at or after eight, 14, 18, and 20 weeks of pregnancy, as measured from the first day of a patient’s last menstrual period. HB 126 is written in such a way that the later gestational age bans are intended to remain in effect if any of the earlier ones are struck as unconstitutional. In other words, if Missouri’s eight-week ban is struck down, language in the measure triggers another ban on abortions at 14 weeks. If that 14-week ban is overturned, an 18-week ban would take effect. If that 18-week ban is struck down, abortions would be illegal after 20 weeks.
Tuesday’s decision from Judge Howard Sachs, an appointee of former President Jimmy Carter, blocks every gestational age ban packed into HB 126. Abortion will continue to be legal in the state up to the age of fetal viability, with an exception for emergencies.
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Now for the bad news.
Judge Sachs allowed a measure to stand banning an abortion sought for certain reasons, including the race, sex, and apparent Down syndrome diagnosis of the fetus. The conservative Sixth Circuit Court of Appeals is considering a similar measure currently blocked in Ohio. Attorneys for the State of Arkansas recently appealed a decision blocking its so-called reason ban to the conservative Eighth Circuit Court of Appeals, which also covers Missouri. A nearly identical measure from Kentucky has been temporarily blocked while that challenge proceeds; an appeal to the Seventh Circuit is all but guaranteed.
The cases should all be easy calls. These laws are unconstitutional because they are pre-viability abortion bans, no matter the reason for seeking care. But thanks to the 2007 Supreme Court decision in Gonzales v. Carhart, which upheld as constitutional a pre-viability “partial-birth abortion” ban, that bright line of constitutionality has blurred.
Conservatives won in Gonzales in large part by appealing more to the court of public opinion than to the court of law. Their legal arguments relied as much on their sensationalization of later abortion methods as on precedent. That strategy worked. And it could work with what anti-choice activists call “eugenics” or “discrimination” bans, like the one allowed to take effect Tuesday in Missouri.
In deciding to allow Missouri’s ban to take effect, Judge Sachs cited Justice Clarence Thomas’ concurring opinion from Box v. Planned Parenthood of Indiana and Kentucky. That decision, released in May, declined to hear a challenge to an Indiana law that also bans pre-viability abortion if the decision is based on the race, sex, or possible disability status of the fetus. A lower court blocked Indiana’s law as an unconstitutional pre-viability ban, and the Seventh Circuit Court of Appeals affirmed that decision. The Supreme Court declined to get involved—but not without Justice Thomas getting a few words in linking modern-day family planning to the eugenics movement.
“The concurrence by Justice Thomas demonstrated great interest in the ultimate question of a State’s authority, in his phrasing, to prevent ‘abortion from becoming a tool of modern-day eugenics,’” Sachs wrote.
Sachs’ opinion goes on to acknowledge that precedent would dictate he block the reason ban too—but that its potential impact appears minimal compared to the gestational age bans in question.
On that point, he’s correct. It would have been devastating for patients had Sachs allowed Missouri to ban abortion after eight, 14, 18, and 20 weeks. Thankfully, that wasn’t the case.
Instead what happened was another significant chip in the very foundation of Roe v. Wade: the limit of states’ power to intrude on the decision whether to terminate a pregnancy.
Judge Sachs conditioned his decision to allow Missouri’s reason ban to take effect on what he viewed as insufficient information on the number of pre-viability abortions motivated by a Down syndrome test. His order notes a patient may not disclose their reason for terminating a pregnancy. If so, Sachs states, then enforcing the law is difficult, if not impossible. His order leaves open the possibility of another challenge to the reason ban should such information be developed at a later date. His opinion said he was open to possible “as applied” or case-by-case challenges to the reasons ban, and even that it was possible the plaintiffs could still ultimately win on the issue of its constitutionality.
All of that sounds not so bad, maybe. If a patient doesn’t disclose their reason for an abortion, how can a state enforce a ban based on certain prohibited reasons? Don’t these kinds of abortion restrictions bark worse then they bite?
The problem, though, is what we’ve witnessed from Gonzales on: This situation could represent the erosion of a legal rule designed to limit state power in regulating pregnancy and childbirth. And that’s just why these reason bans are so dangerous.
As Judge Sachs writes, “for present purposes I assume that almost everyone in our culture would be appalled by a pregnant woman’s abortion of a fetus identified as female because the woman or the family preferred that she give birth to a boy. The legal issue is whether the public, through legislation, has a right to intervene and prohibit such a discriminatory or ‘selective’ abortion of a fetus before viability.”
There is no evidence that patients are aborting female fetuses, just as there is no evidence that patients are aborting fetuses based on their race. These are presumptions based on racist tropes that Judge Sachs just tacitly endorsed whether he meant to or not. Disability rights advocates have also raised the dangers of stoking eugenicist fears when passing Down syndrome abortion bans. And this tacit endorsement undermines reproductive autonomy: It invites solutions for a problem that doesn’t exist. Those solutions can, in turn, target pregnant people for decision policing in ways we may not even be able to foresee.
“What little abortion access in Missouri is left will stay in place for the time being,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America, in a statement following the decision. “In the meantime, we cannot ignore the part of this law that remains in place, which allows politicians to interfere with the patient-provider relationship. Let’s be very clear: These severe restrictions on abortion access do nothing to address disability rights or discrimination. They only stigmatize abortion and shame the people who seek that care.”
Attention now turns to the Sixth Circuit Court of Appeals, which heard oral arguments in Ohio’s reason ban in January. Attorneys for the State of Ohio urged the appeals court judges to reverse the lower court and let Ohio’s rule take effect in part as a direct challenge to the idea that states cannot ban abortion before viability. The Sixth Circuit judges did not seem opposed to the idea, though they haven’t issued any such ruling yet. Meanwhile, it’s likely that a Missouri’s reason ban will eventually find its way to the conservative Eighth Circuit Court of Appeals, where Arkansas’ ban currently sits.
The Supreme Court refused to take up Box because not enough federal courts had yet considered the issue of whether states could constitutionally ban abortions pre-viability if the decision was based on the sex, race, or Downs syndrome diagnosis of the fetus. Just a few months later, reason bans like Missouri’s are poised to be the next big constitutional test for abortion rights sitting on the Court’s steps.