Missouri has become the latest state to pass an anti-abortion bill that clearly is meant only to exist as a challenge to the Supreme Court precedents set down in Roe v. Wade and Planned Parenthood v Casey. This bill is slightly more liberal than the law passed earlier this week in Alabama, which effectively purports to outlaw all abortions, but not by much. Instead of an outright ban in essentially all cases, the Missouri law bans almost all abortions after the eighth week of pregnancy:
The Missouri House passed a bill Friday to ban abortions after a fetal heartbeat is detected, a measure that comes amid a flurry of anti-abortion legislation in statehouses across the county as Republican lawmakers mount direct challenges to federal protections for the procedure.
The bill now moves to the desk of Gov. Mike Parson, a Republican, who is expected to sign it into law.
If enacted, Missouri would become the fifth state this year to adopt such a policy, which would prohibit abortion at about eight weeks, before many women know they are pregnant. The only exceptions would be when the mother’s life is at risk, but not for cases of rape or incest.
Anti-abortion legislation has been passing at a rapid pace, mostly in the South, in an effort to challenge Roe v. Wade, the Supreme Court’s 1973 ruling that established federal protections for abortion.
Under the Missouri law, doctors who break the law would be prosecuted and could receive prison sentences of five to 15 years. Women who seek abortions will not be prosecuted.
“Until the day that we no longer have abortions in this country, I will never waver in the fight for life,” Mr. Parson said this week at a gathering of supporters of the bill.
Kentucky, Mississippi, Ohio and Georgia also have banned the procedure once fetal cardiac activity is detected. Many states say heartbeat bills would prohibit abortion at around six weeks; Missouri’s bill estimated that it would be at around eight weeks.Even if the bill is signed into law, that does not mean it will go into effect. Heartbeat bills have passed, and been suspended in court challenges, in several states. Two bans, in Iowa and North Dakota, died in court challenges before this year, and Kentucky’s bill, which passed this year, was suspended by a judge.
Dr. David Eisenberg, the medical director of Reproductive Health Services, a Planned Parenthood clinic in Missouri, which is the last abortion provider in the state, said he was worried that, with all the news and headlines, women would be left with the impression that abortion was no longer legal in Missouri at all.
As with the Alabama law, the bill in Missouri contains no exceptions for pregnancies resulting from rape or incest, meaning that a 12-year-old girl impregnated due to being raped by a family member would be unable to get an abortion unless she did so within the first two months of pregnancy, a time period during which many women and girls often don’t even realize they are pregnant to begin with. It is also worth noting that the date at which the proposed law would purport to ban abortion is not medically significant in any respect. It fails, for example, to comply with the Roe and Casey standard that provides that the state may have an interest in more heavily regulating abortion once the pregnancy reaches the point where the fetus could realistically survive outside of the mother’s womb. Additionally, the law ignores the fact that it would purport to ban abortion long before the developing fetus reaches the point where it is becoming even remotely human.
Missouri’s Governor, Republican Mike Parson, has not indicated whether or not he will sign the bill into law but, as with Alabama Governor Kay Ivey earlier this week, it is expected based on his previous statements that he will indeed sign the bill into law. Prior to the law’s passage by the State House of Representatives, for example, he said that it was “time to make Missouri the most pro-life state in the country.” In this respect, he is being consistent with the actions of Republicans and state legislatures across the country that have acted to restrict abortion rights via regulation, outright bans, and other methods that are clearly intended to achieve the purpose of serving as the vehicle for the Supreme Court to overturn the Roe and Casey precedents given the change in the makeup of the Supreme Court.
As with the far more restrictive Alabama law, though, I suspect that the most likely outcome is not the one that anti-abortion advocates are hoping for. It’s clear, for example, that this law will no doubt be subjected to legal challenges from Planned Parenthood and other organizations. Given the fact that the lower courts are legally bound to follow Supreme Court precedent, the most likely outcome at both the District Court level and in the Eighth Circuit Court of Appeals, which is where any appeal would be heard. My expectation is that both courts will rule against the state because this law is entirely incompatible with the precedent laid down in Roe and Casey and largely reaffirmed just two years ago in Whole Women’s Health v. Hellerstadt et al, a case in which a 5-3 Supreme Court struck down a series of Texas laws that were clearly designed to make it difficult for abortion clinics to operate in the state
From the Circuit Court of Appeals, of course, the losing party would have the option of appealing the matter to the Supreme Court. At that point, the question will be whether there are four Justices willing to hear the appeal. While the fact that there is a five-Justice majority on the court suggests that there would be sufficient support for the court to accept the case, there’s also a good chance that the Court may decline to hear the case altogether due to the fact that it is not a very good vehicle for a direct challenge against Roe. Indeed, there is good reason to believe that Chief Justice Roberts would be reluctant to see the Court use a deeply flawed law like this or the case that might arise out of Alabama to take on the Roe precedent even assuming he is inclined to do so at this time.
Admittedly, I could be wrong about this. The Missouri and/or Alabama laws could end up before a District Court Judge intent on rejecting Roe and its progeny, and his or her decision could end up being upheld by the Supreme Court. Additionally, the Supreme Court could end up accepting an appeal regardless of the holding below and the Justices could end up issuing a ruling that substantially limits the precedents in Roe, Casey, and Hellerstadt or strikes them down altogether. If that happens, then abortion would become a front-and-center political issue to a greater extent than it has over the past 47 years since Roe was decided. At that point, though, Republicans may find that they have achieved a legal victory that creates more political headaches than anticipated.
