The Supreme Court Must Settle the Selective-Abortion Question

Published June 14, 2021

National Review Online

Last week, the Eighth Circuit Court of Appeals blocked key provisions of a pro-life statute in Missouri, including the portion of the law that prohibits abortions knowingly performed after an unborn child has been diagnosed with Down syndrome.

The decision marks the second time this year that Eighth Circuit judges have struck down a state law attempting to regulate selective abortions following a prenatal Down-syndrome diagnosis. In January, a three-judge panel of the Eighth Circuit blocked a similar law out of Arkansas, a decision that the state has appealed to the Supreme Court.

Missouri attorney general Eric Schmitt has already announced that his state plans to do the same. “While we’re disappointed in the Eighth Circuit’s decision, their decision does provide an avenue for this case to be heard by the Supreme Court, and we plan to seek review in the Supreme Court,” Schmitt said in a statement last week.

Schmitt, who in April led a coalition of 22 states in filing an amicus curia brief on behalf of Arkansas in its Supreme Court appeal, told National Review that the selective-abortion provision of Missouri’s law is especially important to him.

“I’m the dad of a 16-year-old son with some pretty profound disabilities,” Schmitt said in a phone interview. “Stephen was born with a rare genetic condition called tuberous sclerosis. He’s been pretty affected by it, but certainly Stephen has taught me a lot about life and perspective, and I view it as part of my role to fight for the most vulnerable.”

In a recent op-ed on the subject, Schmitt wrote,

When an entire group of people is targeted for elimination solely because of an immutable characteristic, such as race or disability, that is considered genocide. People with Down syndrome are facing genocide through abortion and biased genetic counseling. That genocide must stop.

In addition to the ban on selective abortion, Missouri’s H.B. 126 contains several “tiers” of gestational-age restrictions on elective abortion, including at eight, 14, 18, and 20 weeks of pregnancy. Pro-life legislators sometimes structure laws in this way in the hopes that they will present courts with an opportunity to expand the types of permissible protections for the unborn while also serving as a vehicle to challenge and reverse existing abortion jurisprudence.

The selective-abortion section of the Missouri law is perhaps the most interesting of its provisions as a matter of legal strategy, as the Eighth Circuit decision in this case and in Arkansas’s intensifies an existing circuit-court split on the question of disability-based abortions.

Earlier this year, the Sixth Circuit Court of Appeals upheld an Ohio law that prohibits abortions chosen on the basis of a prenatal Down-syndrome diagnosis. The ruling, decided by the full court, reversed a previous ruling from a three-judge panel of the Sixth Circuit that had blocked the law and prevented Ohio from enforcing it.

The April decision upholding Ohio’s statute created a circuit-court split, because it contradicted a 2018 ruling from the Seventh Circuit Court of Appeals, which had blocked a similar selective-abortion ban in Indiana. Upon review, the Supreme Court declined to make any determination about that Seventh Circuit decision, as no other appellate court had yet ruled on the question of selective abortion.

Three years later now, that has changed, and bans on abortion chosen on the basis of sex, race, fetal disability, or Down-syndrome diagnosis have become far more common. Earlier this year, South Dakota and Arizona enacted legislation banning abortions knowingly performed after a Down-syndrome diagnosis, and state legislatures in North Carolina and Pennsylvania are mulling laws that would do the same.

Though it’s conceivable that the Court’s ruling in Dobbs v. Jackson Women’s Health Organization might render it unnecessary to rule on selective-abortion bans, the Court ought to take up this question in particular and rule in favor of a state government’s right to protect disabled unborn children from blatant, eugenic discrimination.

Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.

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