Wed March 19, 2014
Missouri's Latest Abortion Debate Once Again Attracts National Attention
For at least 35 years, Missouri has been one of the major battlefields in the ongoing fight over reproductive rights, contraception and abortion.
Based on the last few weeks in Jefferson City, not much has changed.
“Missouri is one of the really hot states, when it comes to abortion restrictions this year,’’ said Elizabeth Nash, state issues manager with the Guttmacher Institute, a research group advocating sexual and reproductive health rights.
Nash was referring to the Missouri House’s approval last week, by a veto-proof majority, of a bill to mandate a 72-hour waiting period before a woman could obtain an abortion. The state’s current waiting period is 24 hours.
If enacted, the bill could prove pivotal -- much like the 1989 U.S. Supreme Court decision, dubbed Webster vs. Reproductive Health Services, that allowed states to bar public employees, facilities or funds from being involved in abortions in any way.
Many see that 1989 decision as paving the way for abortion opponents around the country to press more vigorously for other restrictions, with the ultimate aim of persuading the U.S. Supreme Court to overturn the 1973 decision – Roe vs. Wade – that legalized most abortions.
Which may help explain why Missouri’s latest legislative battles over reproductive issues -- notably the 72-hour waiting period -- has received an unusual amount of national attention.
The bill contains no exceptions for rape or incest, although it retains the current exemption if an abortion is needed because an emergency situation has arisen regarding the woman’s health.
The measure now goes to the state Senate, where supporters are promising to deploy little-used legislative maneuvers to defeat the opposition and get the 72-hour waiting period on the governor's desk. Gov. Jay Nixon, a Democrat, generally supports abortion rights but has allowed some restrictions to go into effect since he took office in 2009.
Nixon said in an interview that he has been focused on other matters, such as jobs and Medicaid expansion, and that he will address the 72-hour issue if and when the bill gets on his desk.
If the restriction becomes law, and weathers a possible court challenge, Missouri would become only the third state in the nation to impose such a lengthy waiting period.
Utah and South Dakota already have 72-hour waiting periods on the books. Utah’s restriction was first enacted in 2012, while South Dakota’s waiting period – which exempts weekends -- finally went into effect in 2013, after abortion-rights advocates dropped a court suit.
When is a waiting period an 'undue burden?'
The lack of a decisive court decision over the 72-hour issue isn’t lost on some experts on both sides.“We’ve never seen a 72-hour waiting period upheld by the courts,’’ said Nash with the Guttmacher Institute.
She pointed out that the courts acted in the 1980s to strike down a 48-hour waiting period in Tennessee, which may be why abortion opponents then began pushing instead for 24-hour waiting periods.
The U.S. Supreme Court upheld Pennsylvania’s 24-hour waiting period in 1992. That set in motion a series of subsequent efforts around the country. The 24-hour waiting period is now the law in 26 states, including Missouri.
Paula Gianino, president and chief executive of Planned Parenthood of the St. Louis Region and Southwest Missouri, said the organization is consulting lawyers about a possible legal challenge should the 72-hour measure become law.
Abortion opponent Sam Lee, who heads the lobbying group Campaign Life Missouri, said the potential for a legal fight is why the 72-hour bill has a provision that says the state automatically reverts back to a 24-hour waiting period if the courts block the 72-hour change.
Should a lawsuit ensue, a key question before the courts would be whether the 72-hour delay represents an “undue burden’’ on women seeking an abortion. If the court believes a restriction places an "undue burden" on a woman, the restriction would be unconstitutional.
To backers of abortion-rights, a 72-hour waiting period could narrow the window when abortions could be legally allowed.
As it stands, the courts have ruled that abortions can be allowed up until a fetus could survive outside the womb, generally 22 to 24 weeks. But abortion opponents have been pressing for earlier bans. On Friday, for example, a federal judge tossed out Arkansas’ attempt to ban abortions after 12 weeks.
Women may not know that early -- at 12 weeks -- that they are pregnant. Planned Parenthood's Gianino said that a 72-hour waiting period could force some women past the time when less intrusive procedures -- such as the drug RU-486 -- can be used.
“This issue has been studied for decades,” Gianino said. “Waiting periods don’t decrease abortions, but they do increase later abortions.”
Pam Fichter, president of Missouri Right to Life, said she’s optimistic that the courts will agree with abortion critics that a 72-hour waiting period is necessary to give a woman “time for reflection."
“Women need time to reflect on what the options and risks are,’’ she said.
Legislators initiated longer waiting period
That said, Fichter and Sam Lee both emphasized that the idea of extending Missouri’s waiting period to 72 hours came from legislators, not Missouri’s anti-abortion movement.
While solidly behind extending the waiting period, Fichter said her group has been focusing on another bill – still pending -- that would impose more inspections and other restrictions on Planned Parenthood’s abortion clinic in St. Louis, the only abortion clinic left in Missouri.
Although Nixon isn’t commenting on the new wave of proposed abortion restrictions in Missouri, U.S. Sen. Claire McCaskill is. McCaskill, D-Mo. and a former prosecutor, said she was particularly concerned that the 72-hour bill had no exception for victims of rape. McCaskill has been prominent in the congressional debate over ways to curb sexual assault in the military.
McCaskill said Missouri’s 72-hour waiting period bill appears to punish women who “for whatever reason” could not immediately take the “morning after pill,’’ also known as Plan B, after the assault.
If the rape victim discovers a few weeks later that she’s pregnant, she then would have to wait 72 hours. “I am certainly opposed to that idea,’’ McCaskill said. “I think telling the rape victim, ‘We want you to see a video and you’ve got to wait another two days.’ It’s just a bad idea.”
McCaskill added that those pressing the measure didn’t appear to give women much credit. When it comes to obtaining an abortion, she said, “I don’t think any woman goes into this decision without a great deal of introspection and thought.”