Why a court's decision to block Missouri's abortion ban may not be good news

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Earlier this year, the Supreme Court agreed to hear a case about Mississippi's previability ban.

Conservatives spent decades capturing the courts, ensuring a clear path for a right-wing anti-abortion agenda. Now that conservatives have a solid 6-3 majority on the U.S. Supreme Court, even when anti-abortion activists lose in the lower courts, they might ultimately win.

The 8th Circuit Court of Appeals recently upheld a federal judge's injunction that blocked Missouri's eight-week ban from taking effect. The law prohibits any abortions after eight weeks of pregnancy, even in the case of rape or incest.  It was passed in May 2019 and has been blocked since August 2019.

Under the Supreme Court's most recent decisions on abortion, Missouri's law is unconstitutional on its face. Abortion is currently legal until viability — the point at which a fetus could survive outside the womb.

Most experts agree that viability is not reached until somewhere between 24 and 28 weeks. Eight weeks is well below that, but Missouri ignores that, saying that the presence of what is inaccurately called a "heartbeat" is a better determination of whether an embryo or fetus will survive. 

Missouri gets to that conclusion by conflating miscarriage data with viability data. The law states that the overall risk of miscarriage "decreases significantly if cardiac activity" is confirmed early in pregnancy.

But what they term "cardiac activity" has nothing to do with whether a fetus is viable, an entirely different concept. It confuses, likely deliberately, whether it is likely a fetus will survive until natural birth with whether that fetus is currently able to survive outside the womb. 

The arguments Missouri raised in court when defending the law were equally puzzling. At the 8th Circuit, the state argued that the eight-week ban wasn't really a ban — it was just a regulation. That court didn't agree, saying that after eight weeks "there is nothing an individual in Missouri could lawfully do to obtain an abortion." and went on to say that previability bans are inherently unconstitutional.

Before 2021, this might have been the end of the line for Missouri's law. However, earlier this year, the Supreme Court agreed to hear a case about Mississippi's previability ban, albeit at 15 weeks. Were the Court to agree, in that instance, that previability bans are appropriate, that would open the door wide for Missouri's law to take effect.

Perhaps that's why Missouri's attorney general, Eric Schmitt, doesn't seem too concerned about the loss before the federal appeals court this month. He said, "While we're disappointed in the 8th 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's comments encapsulate the current GOP thinking about abortion laws. Losses in lower courts don't particularly appear to matter because the end of the line is a Supreme Court with a solid majority of anti-choice Justices.

Further, it doesn't bode well that the court agreed to hear the Mississippi case. That signals a willingness to consider the constitutionality of previability bans rather than summarily dismissing them in accordance with Roe.

So, while at first blush the ruling against Missouri in the 8th Circuit looks like a victory for abortion rights, it might just be a prelude to a big loss in the highest court.