Missouri State Solicitor General John Sauer made a passionate plea to protect unborn babies with Down syndrome Thursday before the Eighth Circuit Court of Appeals.
Courthouse News reports Sauer asked the court panel to allow Missouri to enforce its law banning abortions on unborn babies with Down syndrome. A lower federal court blocked the law in 2019.
“A radical reduction in the number of the class of people with Down syndrome would inflict an incalculable loss in our society,” Sauer said. “People with Down syndrome are literally one generation away from complete elimination.”
He cited statistics showing how unborn babies with Down syndrome are targeted for abortions across the world. The abortion rates for unborn babies with Down syndrome in Denmark, South Korea and the United Kingdom are approximately 90 percent, he said. In the U.S., the rate is between 67 percent and 93 percent, he said.
“The epidemic of abortion targeting children with Down syndrome for elimination fully because of their disability, not for any other reason, is a crisis,” Sauer said.
Planned Parenthood and the American Civil Liberties Union are challenging the state law, which includes multiple pro-life provisions including a ban on abortions after 8 weeks when an unborn baby’s heartbeat is detectable. It also bans abortions if they are done solely because of the unborn baby’s race, sex or a Down syndrome diagnosis.
U.S. District Judge Howard Sachs blocked the state from enforcing the law in September 2019; however, the state appealed to the Eighth Circuit court.
Information cited in his ruling suggests that unborn babies with Down syndrome are being targeted for abortions in Missouri. According to evidence presented by Planned Parenthood, abortionist Colleen McNicholas “specifically recalls that three patients she treated in the last 12 months had received ‘a fetal diagnosis of Down Syndrome.’”
In 2019, McNicholas told the AP that “EVERY reason to have an abortion is a valid reason.”
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The Eighth Circuit panel considered arguments from both sides Thursday but did not indicate when it will rule on the issue.
Here’s more from Courthouse News on the hearing:
U.S. Circuit Judge Jane L. Kelly, the only judge in the Eighth Circuit appointed by a Democratic president — Barack Obama — questioned Sauer on how the state’s restrictions on Down syndrome abortions would square with [Planned Parenthood v. Casey, which upheld Roe v. Wade but allowed states to restrict abortions once the baby is viable].
“Casey did not decide whether a state may prohibit an abortion for a discriminatory reason,” Sauer said.
Kelly also questioned if the law interfered with a women’s right to a pre-viability abortion.
“I believe Casey says the state cannot present a substantial obstacle to a woman’s decision to bear or (abort) a child,” Sauer said. “It does not say there is right to bear or (abort) a particular child, a child with preferable characteristics. There’s nothing anywhere in Casey that says you have a right to a child with these particular characteristics.”
Research indicates that unborn babies with Down syndrome are targeted for abortions at astronomical rates. The abortion rate for unborn babies diagnosed with Down syndrome is nearly 100 percent in Iceland, according to CBS News. Estimates put the rate at 77 percent in France and 67 percent in the United States, though some estimate it may be as high as 90 percent.
This eugenic targeting has prompted a number of states to pass laws protecting the unborn. North Dakota became the first state to ban abortions on unborn babies with Down syndrome in 2013. Abortion activists challenged the law, but a judge allowed it to go into effect. According to the Charlotte Lozier Institute, Louisiana has a similar law in effect.
Utah also passed a non-discrimination pro-life law in 2019, but it has a clause that only allows the law to go into effect if a court upholds a similar law, the AP reports.
Indiana, Kentucky and Ohio also passed non-discrimination laws to protect unborn babies with Down syndrome, but none of them are in effect due to legal challenges from the abortion industry.
The final success of such court challenges remains uncertain. In May 2019, the U.S. Supreme Court refused to hear an appeal urging it to uphold the Indiana law. However, the justices’ decision left open the possibility of hearing an abortion challenge in the future.
Justice Clarence Thomas wrote an opinion urging the court to consider laws that protect unborn babies from eugenic discrimination.
“… this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” he wrote. “Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”
Thomas said he believes the court needs to “percolate” on the abortion issue more before hearing a major abortion case.
Missouri and eight other states also prohibit sex-selection abortions, which often target unborn baby girls.