8th Circuit Overturns Arkansas Statute Prohibiting Pre-Viability Abortions for Fetuses Tested Positive for Down’s Syndrome

On Tuesday, the Eighth Circuit declared unconstitutional an Arkansas statute prohibiting abortions at any stage of pregnancy if the consideration for the abortion was rooted in the fetus testing positive for Down’s Syndrome. The appellate court ruled that the Constitution prohibits the state from creating any substantial barriers to pre-viability abortions, regardless of the motivation for desiring said abortion. 

The underlying litigation involved an Arkansas abortion clinic and its physician employee challenging the constitutionality of the statute, particularly because violations of the abortion statute resulted in the performer of the abortion acquiring a Class D felony and a loss of one’s license to practice medicine. The plaintiffs centered their arguments around one fact: Supreme Court precedent clearly dictates that state bans on pre-viability abortions are not allowed, regardless of the purpose behind the purported ban. 

The defendant —the State of Arkansas— argued that the plaintiffs misinterpreted the precedent on which the party relied, as there existed no “novel, absolute right to pre-viability abortion.” The appellate panel sided with the plaintiffs, explaining that while Supreme Court cases have allowed for modest infringements on the right to pre-viability abortions, such as prohibiting the use of certain “brutal” methods of performing pre-viability abortions, the state actions failed to rise to the level of a substantial obstacle to a pre-viability abortion prohibited by the Constitution. 

The court concluded by holding that Arkansas could not prohibit pre-viability abortions, even if the sole reason for the abortion was that the child would be born with Down’s Syndrome. The appellate panel wrote “In this case, it is undisputed that (the statute) is a substantial obstacle; indeed, it is a complete prohibition of abortions based on the pregnant woman’s reason for exercising the right to terminate her pregnancy before viability. We agree with our sister circuits that it is inconsistent to hold that a woman’s right of privacy to terminate a pregnancy exists if the State can eliminate this privacy right if she wants to terminate her pregnancy for a particular purpose.”

The plaintiffs are represented by O’Melveny & Myers and the American Civil Liberties Union Foundation.