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Abortion ban after 8 weeks blocked by federal judge

A Planned Parenthood clinic escort tries to wave a car into the facility as Percy Fountain of the Coalition for Life St. Louis offers literature to a woman outside the gates on Tuesday. U.S. District Judge Howard Sachs stopped the Wednesday implementation of a new Missouri law banning abortions after eight weeks as a legal challenge against it proceeds.

Photo by Robert Cohen, rcohen@post-dispatch.com.

Missouri Republican state lawmakers tried their best to defy the U.S. Supreme Court in a flagrant attempt to deny women their constitutional right to an abortion, but at least for now, it has failed — and deservedly so. A federal judge ruled Tuesday that the Legislature, in passing House Bill 126, unquestionably overstepped the legal boundaries outlined by the Supreme Court and stopped it from going into effect, as planned, on Wednesday.

The wording of U.S. District Judge Howard Sachs’ ruling was an unmistakable rebuke of state GOP lawmakers’ efforts to impose a draconian ban on abortions after eight weeks of pregnancy — the time when a fetal heartbeat might become detectable. Try as legislators did to make the eight-week test a new standard in the abortion-rights battle, they failed because the Supreme Court has long made clear that the test is viability outside the womb, nothing more. Previous high court rulings have established 24 to 28 weeks as the minimum gestation time to ensure viability, and until viability is reached, Sachs emphasized repeatedly, the abortion decision is between a woman and her doctor.

Sachs warned the Legislature to check the “hostility” it displayed toward the Supreme Court in writing HB 126. “While federal courts should generally be very cautious before delaying the effect of state laws, the sense of caution may be mitigated when the legislation seems designed, as here, as a protest against Supreme Court decisions,” he wrote.

Much of what played out in his court is such established law as to be undebatable. Neither side contests, for example, prohibitions against abortions based on sex, race or abnormalities such as Down Syndrome after the point of viability. So Sachs sustained that portion of HB 126.

The crux, though, is that GOP-dominated legislatures around the country have worked hard this year to pass increasingly tough restrictions on abortion rights in hopes of provoking a lawsuit regarding viability that would ultimately place a new abortion case before the Supreme Court. Abortion opponents are hoping that two appointments of conservative justices by President Donald Trump will have tipped the balance in favor of overturning the historic 1973 Roe v. Wade decision that established a woman’s constitutional right concerning her own body.

By granting a partial injunction to plaintiff Planned Parenthood of St.Louis, Sachs wrote that “the issue is whether plaintiffs are likely to prevail” upon appeal. “With existing law as reviewed above (in his decision), plaintiffs easily pass that test. … However formulated, the legislation on its face conflicts with the Supreme Court ruling that neither legislative nor judicial limits on abortion can be measured by specific weeks of development of a fetus; instead, ‘viability’ is the sole test for a State’s authority to prohibit abortions where there is no maternal health issue.”

Quoting former Justice Sandra Day O’Connor, Sachs wrote, “‘Viability is the crucial point.’ The Missouri General Assembly has just done what Justice O’Connor declared is impermissible. … It is thus highly likely that the listed weekly time limits on abortions will be ruled invalid in the final judgment in this case.”

Sachs approached HB 126 from various legal angles, but in addressing argument after argument in the state’s case, he repeatedly emphasized a single point: The Supreme Court has affirmed and reaffirmed that a woman’s right to an abortion is inviolable before fetal viability has been reached. Successive appeals panels have done likewise with other states’ efforts to restrict abortion rights.

In a recent decision regarding a new law in Arkansas, Sachs wrote that a U.S. Seventh Circuit appeals panel held that “under existing law, as established by the Supreme Court, a ‘woman’s right to choose to terminate a pregnancy pre-viability is categorical.’”

In an Indiana case challenging abortion decisions based on whether the fetus showed signs of Down Syndrome or other genetic abnormality, an appeals panel ruled that state efforts to ban abortions based on such considerations “violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.” Sachs underlined the words “for any reason” to emphasize his point.

Even when Missouri Solicitor General D. John Sauer contended that Planned Parenthood didn’t have standing to present this case, Sachs quickly dispensed with the argument by noting the multiple times the Supreme Court has unquestioningly accepted abortion providers’ standing as an affected party when laws are passed with the clear intent to limit abortion providers’ operations.

Besides, since Planned Parenthood’s doctors are the ones who face potential imprisonment and loss of their medical licenses under HB 126 if they perform abortions after the eight-week cutoff, who could sanely argue the organization didn’t have standing to challenge this law?

Sachs was particularly outspoken regarding the tenor of those promoting this law. “The hostility to, and refusal to comply with, the Supreme Court’s abortion jurisprudence is most obviously demonstrated in the attempt to push ‘viability’ protection downward in various weekly stages” to the eight-week limit. “This is contrary to repeated, clear language of the Court.”

Considering all the time, effort, headaches and heartache that HB 126 has exacted across the state, it’s gratifying when a federal judge outlines in such clear detail why the Legislature’s ham-handed bid to restrict abortion rights constitutes such bad law and bad public policy.

Doubly gratifying would be an affirmation of his ruling upon appeal — which seems certain given the bullheaded determination of GOP conservatives to impose their religious beliefs on women as justification for systematically dismantling their constitutional rights. Openly defying justices’ will and ignoring judicial precedent seems like a surefire way for the state to lose if this case ultimately finds its way to the Supreme Court.