A Roe v. Wade challenge could be coming. Will it come from Missouri?
With multiple abortion-related bills on the table for the 2019 session, some are raising questions about the possibility of a future legal challenge or an eventual Supreme Court hearing.
“In order to get Roe versus Wade changed, we need to push it further than we’ve pushed it in the past,” Sen. Andrew Koenig, R-Manchester, said.
Anti-abortion bills are being proposed throughout the country. Ashley Gray, state advocacy adviser for the Center for Reproductive Rights, said that “last year alone, in 2018, states introduced almost 200 bills restricting abortion, and these are all part of a coordinated national strategy to just completely shut down clinics and push abortion out of reach entirely, even while Roe still theoretically stands. But the bills we’re seeing today are even more restrictive.”
A 'watershed year'
Gray called 2019 a “watershed year” for abortion because of the sheer number of bills being proposed from both sides of the debate.
Among the bills making their way through the Missouri legislature — most of which have also been proposed in past years — are proposals to outlaw abortion completely, to ban abortion contingent upon Roe v. Wade being overturned, to limit abortion at a certain number of weeks when a fetus is “pain capable,” to limit abortion when a heartbeat is detected and to require notification of both parents before a minor can seek an abortion.
House Bill 789 is arguably the most restrictive abortion bill this session. The bill, proposed by Rep. Jeff Pogue, R-Salem, would equate abortion to first-degree murder.
Koenig offered Senate Bill 345, which would outlaw abortion at any stage of pregnancy except in medical emergencies, but only if Roe v. Wade were overturned.
Sen. Bob Onder, R-Lake St. Louis, sponsored SB 279, also known as the Pain Capable Unborn Child Protection Act. The act would prohibit abortion at the “pain capable gestational age,” generally 20 weeks after fertilization.
Similar bills have arisen in the past but have not been successful. Onder said that it could be different this time.
Onder pointed to Senate Bill 5, which passed in a summer 2017 special session, as a source of hope for anti-abortion lawmakers. SB 5 modified various abortion provisions and required abortion clinic inspections. Onder also cited the conservative makeup of the Supreme Court and the 8th Circuit Court as indicative of success for such bills.
“Well, if we look at Senate Bill 5, which we passed a year and a half ago, that has been challenged in federal court and every aspect of it has been upheld so far by the 8th Circuit Court of Appeals. So that makes me think that at that level of the judiciary, my bill would likely be upheld,” said Onder. “And, of course, the U.S. Supreme Court, with the retirement of Justice Kennedy, the seating of Justices Gorsuch and Kavanaugh, I think that these sorts of bills that protect unborn children late in pregnancy, I think, are very likely to get upheld.”
M’Evie Mead, director of policy and organizing for Planned Parenthood Advocates in Missouri, said she hopes that lawmakers decide to focus on a different set of priorities.
“There are these policy solutions that they could be focused on that would improve families’ lives, that would reduce infant and maternal mortality. And I can only hope that our legislature will spend time focusing on that instead of trying to play political games as to which state can get the first case before the new Supreme Court,” she said.
Another bill in the legislature is Sen. Koenig’s SB 139, which would outlaw abortions if a fetal heartbeat is detected.
Koenig said he believes his bill has a better chance of success this year: “I also think we’re kind of set up here in Missouri to push the envelope. Ten of the 11 judges here in the state — in the 8th Circuit in Missouri — have been appointed by Republicans, so I do think we should have another test case.”
Sam Lee, director of Campaign Life Missouri said, “I will say that sort of generally in this country, a lot of states, a lot of pro-life groups, are gravitating towards so-called fetal heartbeat bans, that seems to be sort of the popular approach.”
Mead described both Koenig’s heartbeat detection bill and Onder’s pain capability bill as “bans” on abortion.
“Both are based on nonmedical political approaches to having the government make the decision rather than a trained medical professional,” she said. “So both of them are bans — it’s just they would ban abortion at different times in pregnancy.”
U.S. Supreme Court
Mead believes the new makeup of the Supreme Court is encouraging anti-abortion lawmakers.
“I can only presume that they want to push those bills because the Supreme Court has got a new member on it who wants the government to ban abortion,” Mead said.
Kathy Forck, organizer of the Midwest March for Life and campaign manager of 40 Days for Life in Columbia, said that Kavanaugh’s nomination has greatly affected the anti-abortion movement. She said the energy for the march is growing and this year’s was the largest yet.
Other Missouri bills have challenged abortion in a more limited capacity. SB 106, which was passed out of Senate committee, would require both a minor’s parents to be informed before she could get an abortion. While some argue that the bill is primarily about family communication, others see a double standard.
Colleen McNicholas, an abortion provider, said in a hearing on the bill: “I’d also like to point out the irony that a minor mother is able to consent not only for her care and her child’s care, but what we’re saying with these pieces of legislation is that she is capable and competent to make healthy decisions for herself and her child but is not capable of making a decision that indicates she knows she is not ready to parent. And that seems to me to be an incredibly ironic twist in this.”
Currently, abortion in Missouri is only accessible in St. Louis.
Angela Huntington, Health Center Manager of the Columbia Planned Parenthood, said that the organization often sees women that are seeking an abortion, but “we have to turn them away and we have to tell them that, you know, there are options, absolutely there are options — it’s just not here in Columbia.”
She said it can be an issue for women to have to go elsewhere in the state because of travel, cost and child care. Women that come to Columbia’s Planned Parenthood that want an abortion are referred to abortion providers in Overland Park, Kansas, or St. Louis.
The U.S. Supreme Court recently struck down a Louisiana law temporarilyuntil further court challenges reach the highest court again. That law would have required abortion providers to have hospital-admitting privileges and would have significantly limited the number of doctors in the state eligible to perform abortions.
Missouri is one of the more restrictive states on abortion laws, so the amount of proposed abortion legislation here isn’t surprising, said Elizabeth Nash, from the Guttmacher Institute, a research institute that works to advance sexual and reproductive rights.
Many states have adopted measures Missouri is considering. Louisiana, South Dakota, North Dakota, Mississippi and now Arkansas all have “trigger laws” in place that would, if Roe v. Wade is overturned, immediately ban abortion.
At the same time, abortion rights activists have seen some successes.
“As much as we are seeing abortion opponents looking to ban abortion at the state level with the hopes of overturning Roe v. Wade, we’re also seeing legislators in more progressive states looking to support abortion rights in their own statutes for the exact same reason,” Nash said.
The New York legislature passed a law Jan. 22 that permits abortions after 24 weeks of the commencement of pregnancy if the mother’s health is at risk or the fetus isn’t viable. Virginia also passed a law this session that will roll back certain requirements for women who want to obtain abortions.
Those bills are serving as motivation for some anti-abortion lawmakers in Missouri. Rep. Mike Moon, R-Ash Grove, said it’s time that legislators begin the process of challenging Roe v. Wade. Moon has championed anti-abortion legislation throughout his years in the legislature.
Abortion rights efforts
In Missouri, Sen. Jill Schupp, D-St. Louis County, proposed a bill to repeal the 72-hour waiting period before obtaining an abortion.
Although it is unlikely to pass, Schupp said she proposed the bill because “we’ve seen so many additional anti-choice, anti-abortion pieces of legislation being filed by my colleagues on the other side of the aisle that I thought I would put forward something positive that says I trust women to have thought through this carefully and to make the right decision, and it is not appropriate to put all these hurdles in their way.”
Schupp expressed frustration with the strategy of introducing bills as test cases to try and get to the Supreme Court.
“I think it’s hard to tell the public that you’re doing things that way,” Schupp said, “that you’re going to spend taxpayer dollars in order to put someone’s personal beliefs in front of the Supreme Court, so I’m hopeful that that kind of attitude doesn’t play well with Missourians.”
Schupp also said she wanted to pursue other issues in the legislature rather than continuing to try to limit abortion. She has proposed a bill, Senate Bill 346, to extend coverage of contraceptives to 13 months so women don’t run out of contraceptives between appointments, which typically occur once per year. She said this is a good way to limit the number of abortions in the state by helping women avoid unintended pregnancy.
It remains to be seen whether any bills, from either side of the aisle, will pass.
Lee, the anti-abortion lobbyist, said, “I think a lot of lawmakers — and I’m part of this group that believes this — thinks that we should have a bill or part of a bill that in some aspect challenges the Roe v. Wade decision. Will Roe be overturned? Nobody knows, you know. And everybody speculates, but nobody knows.”
Moon said he believes most Republicans don’t have the stomach to ban abortion outright in the state and deal with the subsequent legal processes.
“I don’t think we have the intestinal fortitude to do this right now, but who knows?” Moon said. “Someday we might have a change in our legislative makeup here. They will say, you know what, the time is right. We’re having a change in the other states, so why shouldn’t Missouri be at the tip of the spear?”
This story is a collaboration with The Columbia Missourian.
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