Ban or Regulation: Missouri Abortion Law Hinges on Contrast (1)

Sept. 21, 2021, 6:57 PMUpdated: Sept. 21, 2021, 7:37 PM

The fate of a Missouri’s abortion restriction depends on whether judges view it as a “ban” or merely a “regulation.”

A highly restrictive Texas abortion law may be getting most of the country’s attention at the moment, but an argument Tuesday in the Eighth Circuit over the validity of the Missouri statute presented another opportunity to gauge judicial attitudes about the controversial procedure.

The judges latched onto the distinction: If it’s a ban, then it would be prohibited under the rule that a state can’t legally stop women from terminating previability pregnancies, as held by the lower court.

But if it’s a regulation, the law must be judged under a standard that asks whether the state’s interests for adopting it are compelling enough to outweigh the burden the law places on women seeking abortions.

A split U.S. Court of Appeals for the Eighth Circuit panel previously agreed to continue blocking the state’s enforcement of a restriction forbidding abortions based on a prenatal diagnosis of Down syndrome, but the judges quizzing the attorneys seemed to prefer the state’s arguments. A majority of courts considering similar laws in other states have struck them down.

Not a Ban

A federal trial court in Missouri halted the law, citing U.S. Supreme Court precedent that prohibits banning abortions before a fetus would be able to live outside the womb.

The Eighth Circuit heard the arguments on the propriety of that ruling just a few months before the nation’s top court takes another look at that precedent in Dobbs v. Jackson Women’s Health Organization, a case testing Mississippi’s ban on abortions after 15 weeks’ gestation. The justices will hear that case on Dec. 1.

Some of the Eighth Circuit’s judges, sitting en banc, questioned whether the law is a ban or a regulation.

Missouri Solicitor General Dean John Sauer wouldn’t concede that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey created a categorical rule, but he also argued strenuously that the reason restriction is a regulation.

It’s not a ban because it doesn’t entirely prohibit terminating fetuses diagnosed with Down syndrome, he said.

Rather—as was also pointed out by at least one judge—the law prohibits abortions only when a doctor “knows” a woman’s “sole” reason for terminating the pregnancy is the diagnosis.

It’s a “very limited provision,” the judge said. What if a woman tells a doctor she wants an abortion because the fetus has been diagnosed with Down syndrome and she can’t afford to raise it or the doctor never asks the reason, the judge asked.

The law “looks like a regulation to me,” the judge said. The judges didn’t identify themselves during the hearing, and the media only had access to an audio feed.

Not a Regulation

The law is a ban and is categorically prohibited, Susan Lambiase told the court. Lambiase, of the Planned Parenthood Federation of America, argued on behalf of Reproductive Health Services of Planned Parenthood of the St. Louis Region Inc., which challenged the law.

Regulations involve limits on the mode or manner of abortions, Lambiase said. This law totally prohibits a woman from choosing to have an abortion if her fetus has been diagnosed with Down syndrome, and that makes it a ban, she said.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Uncertain Standard

Even if the law’s text doesn’t expressly prohibit all Down syndrome abortions, it bans them as a practical matter, Lambiase said. The law doesn’t define what constitutes a “knowing” violation or a “sole” reason, she said. Must the doctor absolutely know the reason or will “reckless disregard” expose her to potential liability, Lambiase asked.

A doctor may refuse to perform an abortion in either case, as the uncertainty in the law will have a chilling effect, Lambiase said. It raises fears of prosecution or the revocation of a doctor’s license to practice medicine, she said.

Additionally, only one clinic in Missouri performs abortions, Lambiase said. It wouldn’t be possible for a woman denied an abortion at one clinic to go to another clinic and keep her reason to herself—as the U.S. Court of Appeals for the Sixth Circuit suggested could happen when it upheld a similar Ohio reason restriction, she said.

Lambiase called the Sixth Circuit’s en banc decision an “outlier.”

Changing Attitudes?

Sauer began with an anecdote about an athlete with Down syndrome who completed the grueling Iron Man triathlon. The story illustrates society’s changing perceptions of the worth of people with the condition, he said.

But the change comes at a time when we’re only “one generation away” from eliminating all people with Down syndrome as a result of “eugenic” abortion, he said.

Lambiase wouldn’t use the word “eugenic.” That implies an intention to do away with a particular characteristic, such as a disability, she said. A woman trying to get an abortion isn’t doing it for that purpose, she said.

Additionally, states could do a lot to help people with Down syndrome and their families, she said. For example, they could fund programs to teach parents how to raise a child with Down syndrome or provide money for respite care or employment training, she said.

Both attorneys told the court it has enough information to decide the case before the Supreme Court issues a decision in Dobbs.

Chief Judge Lavenski R. Smith and Judges Roger L. Wollman, James B. Loken, Raymond W. Gruender, Duane Benton, Bobby E. Shepherd, Jane Kelly, Ralph R. Erickson, L. Steven Grasz, David R. Stras, and Jonathan A. Kobes heard the case.

The case is Reprod. Health Servs. of Planned Parenthood of St. Louis Region, Inc. v. Parson, 8th Cir. en banc, No. 19-2882, oral arguments 9/21/21.

(Updated with new information in first eight paragraphs.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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