DANNY WICENTOWSKI
A federal appeals court sided with Planned Parenthood in a fight over a sweeping anti-abortion law.
Missouri's aggressively anti-abortion House Bill 126 has been denied in court, again, as the Eighth Circuit Appeals Court ruled today that the controversial bill's provisions — which would effectively ban the majority of legal abortions in the state — are unconstitutional.
The bill attracted national attention in 2019 for the sweep of its anti-abortion ambitions: Without exception for rape or incest, abortions after eight weeks would be banned and doctors could be charged criminally and imprisoned for violations.
While the court's action Wednesday isn't the last we'll hear from the bill — Missouri Attorney General Eric Schmitt has already stated he will appeal — the ruling was hailed as a victory by abortion rights groups.
In Missouri, where anti-abortion bills are yearly events in the legislature,
"Our rights often come down to one court decision at a time," Yamelsie Rodríguez, President of Reproductive Health Services of Planned Parenthood in St. Louis, says in a statement following the ruling.
"For now," the statement continues, "we celebrate our continued ability to provide safe, legal abortion at the last remaining clinic in Missouri."
HB 126, dubbed the "Missouri Stands for the Unborn Act," was passed in May 2019. But before the law's new restrictions could go into effect, it was challenged in a federal lawsuit by Reproductive Health Services of Planned Parenthood, which runs the Central West End clinic that, as Rodríguez noted, stands as the last foothold for abortion rights in the state today.
The summer of 2019 was a chaotic time for Missouri's sole abortion provider. Days after Governor Mike Parson signed the bill into law, the state refused to renew the Central West End clinic's abortion license, setting off a year-long legal battle before an administrative judge that ended in Planned Parenthood's favor.
But while HB 126 was blocked by a federal judge, it didn't go away. In fact, the bill was designed with legal challenges in mind: The text of the bill itself stipulated that if an eight-week ban on abortion is found to be unlawful, the bill would simply replace the time frame with successively longer ones, starting at fourteen weeks, then eighteen weeks, and finally twenty weeks. (Under current Missouri law, abortion is legal until 22 weeks after pregnancy.)
However, Wednesday's ruling by the federal appeals court concluded that the bill would ban abortions before the point of viability, and therefore violated the rights of the parent carrying the fetus.
The state, meanwhile, argued that the bill should be allowed to go into effect because it did not outright "ban" abortion, but merely "restricted" it.
But the judges on the appellate court didn't accept the state's attempt to redefine the explicit bans contained in HB 126.
Emphasis in original:
"This distinction is significant," the ruling noted. "Bans on pre-viability abortions are categorically unconstitutional. ... A restriction, on the other hand, is permissible so long as it does not impose 'a substantial obstacle' to the right to an abortion."
Wednesday's ruling referenced a similar case in Arkansas, whose lawyers tried to argue that a twelve-week ban on abortion was actually a "restriction," because, technically, abortion was still available for the first twelve weeks. The Arkansas law was eventually overturned in 2015.
In 2021, Missouri fared no better: Even though an eight-week ban allowed abortions during that time frame, the law still prohibited abortion-seeking patients from "making the ultimate decision to terminate a pregnancy at a point before viability," the court wrote.
The judges also took a dim view of Missouri's attempts to downplay the impact of the anti-abortion bill, which represented a notable shift in tone from the kinds of messages coming from elected officials after the passage of HB 126. At the time, Parson himself had joined in the celebration, writing in a May 15, 2019 tweet, "It's time to make Missouri the most Pro-Life state in the country!"
That view was echoed in January of this year, when former House Speaker Elijah Haahr, who oversaw the passage of HB 126, reflected glowingly of the legislation in an op-ed for the Washington Times, crediting the bill with reducing abortions statewide and making the procedure "more difficult, increasingly expensive, and, eventually, unrealistic."
But when facing an appeals court with HB 126 on the line, Missouri's attorneys didn't even try to defend the eight-week ban — which, according to an RFT analysis of state abortion data available in 2019, would have outlawed more than 80 percent of Missouri's abortions.
Instead, Missouri's attorneys presented the notion that HB 126 wouldn't harm abortion access because "the vast majority of women already obtain abortions prior to the later benchmarks" of fourteen, eighteen and twenty weeks — options included in the bill for just this sort of legal-rhetorical maneuvering.
But even a single example of a law unconstitutionally banning a pre-viability abortion would be enough to justify blocking the entire law, the judges ruled — and there would be far more cases than one if the law went into effect.
"Missouri does not dispute that the twenty-week Gestational Age Provision would prohibit about 100 abortions each year in Missouri," the ruling continued, "or that the eight-week Provision would prohibit approximately half of all reported abortions in the state."
In a statement, Missouri Attorney General Eric Schmitt, whose office oversaw the defense of the bill before the federal appeals court, said he is "disappointed" in the court's decision but plans to seek a review in the state Supreme Court. He added, "I have never and will never stop fighting to ensure that all life is protected."
Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at [email protected]
