A Missouri law enacted in 2019 makes it unlawful for a person to “perform or induce an abortion on a woman if the person knows that the woman is seeking the abortion solely because of a prenatal diagnosis, test, or screening indicating Down Syndrome or the potential of Down Syndrome in an unborn child.” A federal district court imposed a preliminary injunction that prevented this Down Syndrome provision from taking effect.
In an opinion today in Reproductive Health Services v. Parson, a divided panel of the Eighth Circuit affirmed the district court’s preliminary injunction. Judge Jane Kelly wrote the majority opinion. Judge David Stras wrote the dissent. (The panel was unanimous in affirming the district court’s injunction against a separate provision of Missouri law that bars abortion after eight weeks of gestation.)
I think that Judge Stras gets things right. I’ll focus here on the two primary factors that bear on preliminary-injunctive relief in this case: whether the abortion provider is likely to succeed on the merits, and whether it or its patients face a threat of irreparable harm.
In holding that the abortion provider is likely to succeed on the merits, Judge Kelly contends that the Down Syndrome provision “bans access to an abortion entirely.” But that is clearly not right. As the text of the provision makes clear (and as the en banc Sixth Circuit recently ruled with respect to a very similar Ohio law), the Missouri law enables a woman to get an abortion if she isn’t seeking the abortion “solely” because of the Down Syndrome diagnosis or, under the “person knows” element, if she doesn’t tell, or otherwise make clear to, the abortion provider that the Down Syndrome diagnosis is her sole reason.
As Stras points out, the Eighth Circuit made the same error several months ago with respect to a very similar Arkansas provision in Little Rock Family Planning Services v. Rutledge. Rather than independently repeating the error in that case, Kelly would have been on much stronger ground if she had simply stated that circuit precedent dictated that the abortion provider was likely to succeed on the merits.
Kelly states that the question of a threat of irreparable harm “is a closer call,” but she also decides that in favor of the abortion provider. In doing so, she defers to supposed factual findings of the district court that the provider would turn away any patient who had received a Down syndrome diagnosis and that the law “would likely be enforced against [the abortion provider] even where [it] knows only of ‘a Down syndrome diagnosis (or even a strong suspicion based on testing).’”
Stras explains that this “statute-made-me-do-it” theory of turning away patients doesn’t make sense, as the abortion provider, by its own testimony, has no medical reason to inquire whether a patient has received a Down syndrome diagnosis and, even if it learns that she has, may proceed with the abortion unless the mother has informed it that the diagnosis is the “sole” reason she is seeking the abortion. Further, Stras explains, the district court “did not actually make” the purported factual findings that Kelly posits and defers to.