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Missouri's controversial abortion law to be heard by federal appeals court

The law adopted in 2019 would ban abortions at or around the eighth week of pregnancy

ST. LOUIS — A federal appeals court on Tuesday will consider whether Missouri can implement a sweeping law aimed at limiting abortions.

The law adopted in 2019 would ban abortions at or around the eighth week of pregnancy. It also would prohibit abortions based on a Down syndrome diagnosis.

The 8th U.S. Circuit Court of Appeals in St. Louis isn't expected to rule for several weeks.

"It's not like a trial, there's no new evidence. Everybody agrees what the facts are for the most part and really the parties are just arguing to the court about what the law ought to be and action they ought to take," said Marcia McCormick, professor of law and women’s and gender studies at Saint Louis University.

In June,  a three-judge 8th Circuit panel  upheld an injunction from U.S. District Judge Howard Sachs prohibiting Missouri from enforcing the provisions. Most of the discussion at the panel's hearing centered around the provision banning abortions because the fetus is diagnosed with Down syndrome.

But the full court then decided to hear the case, a decision that Yamelsie Rodríguez, president and CEO of Reproductive Health Services of Planned Parenthood of the St. Louis Region, called “another troubling signal in a long line of threats to our reproductive freedom.”

McCormick said it's not unusual for the court to rehear a case En Banc, meaning before the full circuit court of appeals. She said what is a little unusual is that the court decided on its own motion to rehear the case.

Missouri Attorney General Eric Schmitt's office is defending the law.

Sachs said in his 2020 ruling that he thought Planned Parenthood and the ACLU would likely succeed in their lawsuit challenging the law as unconstitutional. Similar laws have been struck down in North Dakota and Iowa.

Legislators who helped draft the Missouri law said it was meant to withstand court challenges. It included a provision stating that if the eight-week ban was struck down, a series of less-restrictive abortion limits would kick in at 14, 18 or 20 weeks. But courts have blocked enforcement of all of those limits thus far.

McCormick said the 8th Circuit Court of Appeals could decide that some or all of the law presented before the court is unconstitutional. 

Schmitt wants the U.S. Supreme Court to decide the case. In a court filing in July, Schmitt, a Republican, said the Supreme Court should consider whether Missouri’s restrictions are “reasonable regulations on abortion."

Schmitt also said the High Court should use the case to decide whether to overturn its 1973 Roe v. Wade decision, which established a nationwide right to abortion at any point before a fetus can survive outside the womb, which is roughly around the 24th week.

"I'm guessing the Supreme Court will not act on the petition for certiorari until there is some kind of decision from the 8th Circuit," McCormick said. 

The appeals court case over the Missouri law comes weeks after the U.S. Supreme Court allowed a Texas law that bans abortions once medical professionals can detect cardiac activity, which is usually around six weeks into a pregnancy.

The Supreme Court also has agreed to consider allowing the enforcement of a Mississippi law that would ban abortion after 15 weeks of pregnancy, which could dramatically alter nearly 50 years of court precedent on abortion rights.

Missouri is among several conservative states that have passed abortion restrictions in the hopes that the increasingly conservative Supreme Court will eventually overturn Roe v. Wade.