| Pro-Choice Legislation: |
| Clarifies the duty of pharmacies to fill prescriptions |
| Bill Number: |
SB 948 [ view bill ] |
| Status: |
Second Read and Referred to Committee |
| Sponsor(s): |
Justus, Jolie |
Act requires pharmacies and pharmacy employees to fill all valid, legally written prescriptions.
|
| Duty of Pharmacies to fill perscriptions |
| Bill Number: |
HB1720 [ view bill ] |
| Status: |
Refered to House Committee on Health Care Policy |
| Sponsor(s): |
Talboy, Mike |
Act requires pharmacies and pharmacy employees to fill all valid, legally written prescriptions.
|
| Medically Accurate Sex Education |
| Bill Number: |
SB 780 [ view bill ] |
| Status: |
Second Read and Referred S Education Committee |
| Sponsor(s): |
Smith, Jeff |
This bill removes language pertaining to providing information about the federal abstinence only program and removes restrictions prohibiting educators associated with abortion care providers from teaching sex education in public schools.
|
| Prevention First Act |
| Bill Number: |
HB2272 [ view bill ] |
| Status: |
Refered to House Special Committee on Family Services |
| Sponsor(s): |
Wright-Jones, Robin |
This bill contains several provisions designed to reduce unintended pregnancy and promote reproductive health. These include: Requiring sex education in public schools to be comprehensive, medically accurate, and age-appropriate. Requiring hospitals to provide sexual assault survivors with information and access to emergency contraception. Reinstating the Women's Health Services program. Clarifing the duty of pharmacists to fill valid perscriptions for birth control.
|
| |
| Anti-Choice Legislation: |
| Criminalizing Family Communications About Abortion (House) |
| Bill Number: |
H.B. 1831 [ view bill ] |
| Status: |
Committee Reported Do Pass |
| Sponsor(s): |
Onder |
ANALYSIS OF S.B. 1058 AND H.B. 1831
By Pamela L. Sumners, Esq.
SUMMARY: In the midst of confusion about exactly what the Task Force on the Impact of Abortion on Women means when it has often discussed “coerced” abortions (including the highly dubious claim that 64% of abortions are not the woman’s voluntary decision), S.B. 1058 and H.B. 1831 attempt to supply some definitional content.[1] Their definition of “coerced abortion” blatantly violates the First and Fourteenth Amendments and the Equal Protection Clause of the United States Constitution by (a) criminalizing mere speech, (b) interfering in intimate and familial association and violating substantive due process privacy principles, and (c) doing each of these things with punitive consequences in some instances only for males, and in some only for married males (thereby violating the Equal Protection Clause based on not one but two discriminatory legislative classifications). In addition, the bills impose burdensome requirements on physicians who perform abortions and on clinical staff, pose an interference with a physician’s medical judgment, and trend toward “scripting” physicians with an ideological message that may amount to unconstitutionally coerced speech. [2]
I. THE CONDUCT CRIMINALIZED BY SECTION 565.310.1 ET SEQ. SUBSUMES MERE SPEECH AND ALSO INTERFERES WITH THE RIGHT OF INTIMATE/FAMILIAL ASSOCIATION AND GENERAL PRIVACY PROTECTIONS.
- Section 565.310.1 Purports to Criminalize Both Private Conversations and “Attempts” to Do Constitutionally Protected Things.
Section 565.310.1 provides: A person commits the crime of coercing an abortion if the person knowingly coerces a woman to seek or obtain an abortion by . . . refusing, attempting to refuse, or threatening to refuse to pay child support to the woman in connection with her unborn child. . . [or] [t]hreatening before the child is born to take legal action after the child is born to deprive the woman of custody of her child; . . .[or] attempting to withdraw, or threatening to withdraw financial support from or on behalf of the woman that had previously been supplied or offered to or on behalf of the woman; . . .[3][or] . . .attempting to change, or threatening to change the woman’s existing housing or residence. . . [4] The state of Missouri cannot criminalize a threat to do that which a person has a lawful constitutional right to do: verbally communicate an intention to take legal action, to “threaten” legal action, to withdraw one’s financial support from a person who is not a spouse or to whom one otherwise has no obligation to provide support, such as a roommate or girlfriend, or “threatening” that a change in roommate status might be occasioned by the subject woman’s giving birth to a child. “Threats” to exercise one’s free will in life choices as to with whom one will live and under what circumstances and at which address cannot be outlawed, inasmuch as such “threats” are merely expressions of a current intention to make lawful changes in life plans in the future. Only actual refusal to pay child support as ordered by a court forms a basis for legal action by the state, and no decree could be entered with reference to a fetus, which has no legal status. “Threatening” nonpayment on behalf of a person not yet in being, or “attempting to refuse” to pay child support for a person not yet in being, are not prosecutable as inchoate offenses. “Threatening” nonpayment is no more than speech, and the notion of “attempting to refuse” to pay child support on behalf of a person not yet in being is a nonsequitur at best, a ludicrous concept. It is not difficult to imagine a pregnant woman informing a man whom she believes to be the biological father of her fetus that she intends to carry to term and expects him to help raise the child, and his response is that she should have an abortion, that he is not going to pay for the child’s support. It is not difficult to imagine a surprised man saying he wants a divorce because he does not want to raise a child, or “attempting to file” for divorce by seeking legal advice, or “threatening” divorce or marital separation. It is not difficult to imagine a cohabiting male partner “threatening to change” the woman’s residence by telling her to find another lease if she intends to have a child. All of these scenarios present mere speech, which cannot be criminalized consistent with the First Amendment and general principles of criminal law governing specific intent to do an act, criminal law regarding inchoate offenses generally, and the obvious distinction between an oral threat to dissolve a marriage and an actual assault on a pregnant woman calculated to coerce her to have an abortion. No doubt oral threats to dissolve marriages occur with greater regularity than our courts ever see and in some households, may regrettably be pillow talk or dinner-table conversation. - S.B. 1058 and H.B. 1831 Represent Profound Interference in Intimate and Familial Relationships, in Violation of the First and Fourteenth Amendments.
Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment to the Constitution. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977); Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942). People who are related to each other by blood or marriage, and people who are unrelated to each other but chose to have relationships, are protected in their associations by the First and Fourteenth Amendments. Compare Moore, 431 U.S. 494, with NAACP v. Alabama, 357 U.S. 449 (1958). Intimate relationships that are nonmarital also receive Fourteenth Amendment Due Process Clause protection. Lawrence v. Texas, 539 U.S. 558 (2003); Stanley v. Illinois, 405 U.S. 645 (1972). The state may no more compel a person to stay married or to refrain from seeking a legal separation on pain of prosecution than it may compel a man to marry in the first place, or prevent mixed-race heterosexual couples from marrying or buying a home together. The state may not dictate decisions so fundamental as whether or not to procreate, either to women, Roe, 410 U.S. 113, or to men, Skinner, 316 U.S. 535. Nor may the state unreasonably dictate decisions related to marriage, because the right to marry—and the right not to—are fundamental rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967). The State of Missouri cannot stand as a censor of verbal threats to dissolve a marriage. Nor can it can compel a man to stay married or require him to continue to cohabit with a pregnant woman on pain of committing a Class A misdemeanor. A wag might observe that S.B. 1058 and H.B. 1831 set up a regime in which men married to pregnant women have de facto “covenant marriages” under this bill. Section 565.310.1 purports to throw a man in jail for being a cad, or even for being cuckolded, or perhaps because he simply does not want a child in his home even if a court later determined he had an obligation to pay for that child’s support. A woman has the right to choose not to be a mother within well-established parameters of law. A man cannot be thrown in jail or fined because he wants a divorce or change in domestic arrangements upon learning of an impending birth. Section 565.310.1 et seq. is accordingly unconstitutional. - S.B. 1058 and H.B. 1831 Violate the Equal Protection Clause by Singling Out Men in Some Cases for Prosecution, and Compounds this Error by Singling Out Married Men as a Class for Prosecution Under Some Provisions.
As Justice Stevens wrote, “There is only one Equal Protection Clause. It requires every state to govern impartially.” Craig v. Boren, 429 U.S. 190 (1976) (Stevens, J., concurring). Section 565.310.1 (4) singles out married men, apart from all other classes of men, for prosecution, since only married men could be guilty of “[f]iling, attempting to file, or threatening to file for dissolution of marriage or legal separation from the woman.” The bills draw no nexus between a substantial interest of the state of Missouri and a suitable means of serving that interest; they simply assume that threats to do what is legal to do (leave one’s wife) or actually leaving one’s wife, are worthy of criminal punishment merely because she is pregnant. The legislative classification singling out men married to pregnant women from all other men cannot survive scrutiny without this nexus, and self-evidently, no nexus exists where the state’s classification seeks to criminalize speech and activity that cannot be constitutionally proscribed. Likewise, Section 565.310.1 (5) is presumably directed at men and would at any rate have a disparate impact on men.[5] Here, too, no nexus can be drawn between a substantial interest of the state of Missouri and a suitable means of serving that interest, because no nexus exists where the state’s classification seeks to criminalize speech and activity that cannot be constitutionally proscribed. Absent a live birth, no child support obligation could ever exist, so in addition to the other defects, the creation of a crime of coercing an abortion “whether or not that obligation [to pay child support] has been established by law at the time of the refusal” has ripeness problems.[6] II. S.B. 1058 AND H.B. 1831 IMPOSE ONEROUS BURDENS ON ABORTION-CARE PROVIDERS, MAY IMPERMISSIBLY COERCE SPEECH, DISTORT A WOMAN’S DECISIONMAKING PROCESS, AND IN SOME CASES TAKE THE DECISION TO END A PREGNANCY AWAY FROM THE WOMAN AND GIVE IT TO HER DOCTOR AND THE STATE. S.B. 1058 and H.B. 1831, Section 188.027.1 et seq. would require the same physician who is to perform an abortion—not a colleague, a nurse, or counselor—to inform the woman 24 hours in advance of his identity, making substitutions impossible. The bills prescribe that patients be informed in person and in writing by this doctor of a laundry list of possible, even if rare, complications, including “possible adverse psychological risks associated with the abortion.” While these requirements may “sound like” the language of informed consent, it should be noted that the bill would require duplication by the physician of what counselors at facilities that provide abortion care already do in terms of describing actual (not speculative or chimerical) risks. As an aspect of this counseling, the facility must also give the woman printed materials prepared by the State of Missouri that describe “the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from conception to full term, including color photographs or images of the developing unborn child at two-week gestational increments.” Section 188.027 (2). The state-prepared materials will describe limbs, heart and brain function, and developmental stage of internal organs. Id. The woman must be told she can view an ultrasound or hear the fetal heartbeat. Id., subpart 4. The State of Missouri will provide her with a list of facilities that will allow her to view the ultrasound without charge, such as “crisis pregnancy centers.” Id.[7] S.B. 1058 and H.B. 1831 dictate the “risk factors” of which physicians must inform the woman, some of them know to be chimerical, such as that a single abortion may interfere with a later healthy pregnancy and the possibility of “adverse psychological risks”—code for “abortion trauma syndrome.” This “syndrome” is a creation of anti-choice zealots. Its proponents include leading actors in the move to place two measures on the November ballot that would effectively ban abortions in Missouri. Scientific research indicates that in fact the chief emotion experienced by women who terminate unwanted pregnancies is relief. See Cohen, Susan, “Abortion and Mental Health: Myths and Realities,” Guttmacher Policy Rev., v. 9, n. 3 (summer 2006). Despite the evident intent of such provisions to induce guilt and shame, they may not be unconstitutional across the board. Just as courts disagree on the permissible limits of Targeted Regulations of Abortion Providers (TRAP laws), they also disagree about how far a state may go in defining informed consent contours. Courts may yet draw a distinction between mandating that a facility show a woman the ultrasound and asking her if she would like to see one. Some courts could even interpret a line or two in the April 2007 Supreme Court case outlawing intact dilation and extraction under almost all circumstances as allowing states to push the envelope in this matter, although the pertinent language is mere dicta (gratuitous language that is not part of the reasoning behind a court’s decision). Some courts might find it significant that S.B. 1058 and H.B. 1831 provide that if a woman cannot read the state’s prepared materials, the physician or a staffer must read them to her, and moreover, must be qualified to answer questions “in a language she can understand.” [8]In the Eighth Circuit, the federal appellate circuit that includes Missouri, some of the lines are being drawn in cases that are now awaiting decision. All of this means that an absolute legal answer from the courts is still awaited, and the answers might differ among the jurisdictions. We do know that no state-mandated “informed consent” is constitutional unless it is, in the Supreme Court’s words, truthful and not misleading. Planned Parenthood of Pa.v. Casey, 505 U.S. 833 (1992). A key consideration of any court would be the extent to which the state, in writing its materials, inserts ideological material, such as statements that human life begins at conception and that abortion terminates a separate human being entitled to constitutional protection. To the extent the state does so, the physician or medical professional has a persuasive argument that he or she is being coerced to speak the state’s ideological message, with which he or she may not agree. Coerced speech presents constitutional problems, and the state may coerce speech or script speech only to serve compelling state interests. Its own interest in promulgating an ideological viewpoint does not trump the individual’s right to refuse to be a microphone for the state’s message. See Wooley v. Maynard, 430 U.S. 705 (1977).[9] These observations apply with equal force to the portion of the bill that provides for anesthesia or analgesic for fetuses at 22 weeks gestational age. Some courts might consider this merely informed consent if the patient were offered the option and not compelled. Courts would generally inquire as to whether state-authored materials proffered in connection with the offer were neutral and scientifically reliable or intended to manipulate. Some might sustain such a provision so long as the decision was the woman’s and not mandated by statute. Some might find such legislation unsustainable based on scientific inaccuracy, leading to the inference that the legislature was motivated by ideology rather than medical concern, since the weight of reliable research suggests a fetus could not feel pain before 23-29 weeks. See Richardson, C.T. & Nash, Elizabeth, “Misinformed Consent: The Medical Accuracy of State-Developed Abortion Counseling Materials,” Guttmacher Policy Rev., v. 9, n. 4 (fall 2006). Apart from legal rectitude, however, social scientists have begun to note the psychological warfare such provisions wage on women. They have noted, for example, that even truthful messages may be misleading when they take advantage of emotional influence to bias a person’s decision. Viewed in this light, “informed consent” statutes of a breadth such as 1058/1831’s have the potential to be an impermissible burden on a woman’s autonomous decision-making ability because they are calculated to bias her choice, not inform it. See Blumenthal, Jeremy, “Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey,” Wash. L. Rev., v. 83 (Feb. 2008). Two other provisions of S.B. 1058 and H.B. 1831 are highly problematic, especially for physicians. Section 565.315.1 provides that “[a]ny person who knowingly performs or induces or assists in performing or inducing an abortion on a woman, with knowledge that the predominant reason the woman is seeking or obtaining the abortion is that the woman is a victim of coerced abortion, is guilty of a Class C felony.” (What constitutes a “coerced abortion” under the bill is a constitutional minefield, as noted earlier.) Section 565.315.3 requires that a physician who “knows” that the “predominant reason” for an abortion is “coercion” as defined in the text, must certify that she cannot give informed consent to an abortion. Thus, her choice is taken from her entirely, and reposed in the physician doing as the state requires, regardless of gestational stage. This accords with neither Roe v. Wade nor any case qualifying it. S.B. 1058/H.B. 1831 work a profound restructuring of doctor-patient roles and relationships, and could set the doctor up for malpractice or disciplinary action if he or she refuses to accept the state’s definition of “coercion” and instead relies on the precedents of Roe and its progeny and years of standard practice regarding patient counseling.
[1] It should be noted also that two ballot initiatives also reference, in their full text as drafted by their proponents, so-called “coerced” abortions, although coercion is not given definitional content in those initiatives. The initiatives set up a regime of civil, not criminal, liability. [2] The bills might also violate the forgotten Ninth Amendment. See generally Griswold v. Connecticut, 381 U.S. 479 (1965) (Goldberg, J., concurring) (arguing that privacy, particularly as regards one’s home and family life, is protected by the Ninth Amendment). No one has remembered the Ninth Amendment since Justice Goldberg. [3] Constitutional analysis aside, a court could not enforce a gratuitous arrangement of support as a contract in the absence of a common-law marriage (not sanctioned in Missouri) or an actual contract of marriage, and it certainly could not enforce a mere “offer” of gratuitous financial support. In the domestic relations context, a court might well have some harsh words about a meretricious (nonmarital) relationship, in which the “offer” might be conditioned on sexual access, a question that might be reached by this language given the fact that the woman is pregnant. Contractual obligations in meretricious relationships must be mutually bargained, with each party giving a thing of value that it is legal to give in order to support the bargain (consideration). It is difficult to see how how cutting off support, or withdrawing an offer of support in a nonmarital relationship, could be grounds for criminal prosecution. [4] See supra note 3. Of course, parents kicking an unemancipated minor out of the house or refusing to pay for her support presents an entirely different question, since parents are obliged to support minor children and can be prosecuted already for child neglect should they fail or refuse to do so. [5] While it is theoretically possible that a same-sex lesbian couple could have made adoption arrangements for the nonbiological parent of a living child through a court in St. Louis County or in an out-of-state county, such arrangements would be rare. The disproportionate impact of prosecutions under this provision would fall on men. [6] Courts may only hear live cases and controversies. Abstract arguments, and matters not yet “ripe” for review because they are speculative at present may not be adjudicated by a United States federal court. U.S. Const., Art. III. Federal courts would not be adjudicating misdemeanor cases or domestic and family cases in general, but a ground of live controversy still must exist even for state courts to hear a case. Some states allow their courts to issue nonprecedential “advisory” opinions. [7] NARAL Pro-Choice Missouri takes the position that these centers often practice deceptive counseling calculated not to help a woman think through the full range of her reproductive options and arrive at the choice that is best for her, but specifically to convince her not to have an abortion. [8] This requires the medical personnel to read aloud a text with which he or she may disagree, which may represent a more serious infringement on first amendment rights than merely disseminating a publication. In addition, the requirement that questions be answered about the materials effectively forces the medical personnel to be the state’s microphone. [9] See note 8. NARAL Pro-Choice Missouri takes the position that the requirement of interpreting the state’s materials so as to answer questions about them interferes with independent medical judgment and runs a substantial risk of unconstitutionally coercing speech. |
| Criminalizing Family Communications About Abortion (Senate) |
| Bill Number: |
S.B. 1058 [ view bill ] |
| Status: |
Placed on Informal Calender |
| Sponsor(s): |
Mayer |
ANALYSIS OF S.B. 1058 AND H.B. 1831
By Pamela L. Sumners, Esq.
SUMMARY: In the midst of confusion about exactly what the Task Force on the Impact of Abortion on Women means when it has often discussed “coerced” abortions (including the highly dubious claim that 64% of abortions are not the woman’s voluntary decision), S.B. 1058 and H.B. 1831 attempt to supply some definitional content.[1] Their definition of “coerced abortion” blatantly violates the First and Fourteenth Amendments and the Equal Protection Clause of the United States Constitution by (a) criminalizing mere speech, (b) interfering in intimate and familial association and violating substantive due process privacy principles, and (c) doing each of these things with punitive consequences in some instances only for males, and in some only for married males (thereby violating the Equal Protection Clause based on not one but two discriminatory legislative classifications). In addition, the bills impose burdensome requirements on physicians who perform abortions and on clinical staff, pose an interference with a physician’s medical judgment, and trend toward “scripting” physicians with an ideological message that may amount to unconstitutionally coerced speech. [2]
I. THE CONDUCT CRIMINALIZED BY SECTION 565.310.1 ET SEQ. SUBSUMES MERE SPEECH AND ALSO INTERFERES WITH THE RIGHT OF INTIMATE/FAMILIAL ASSOCIATION AND GENERAL PRIVACY PROTECTIONS.
- Section 565.310.1 Purports to Criminalize Both Private Conversations and “Attempts” to Do Constitutionally Protected Things.
Section 565.310.1 provides: A person commits the crime of coercing an abortion if the person knowingly coerces a woman to seek or obtain an abortion by . . . refusing, attempting to refuse, or threatening to refuse to pay child support to the woman in connection with her unborn child. . . [or] [t]hreatening before the child is born to take legal action after the child is born to deprive the woman of custody of her child; . . .[or] attempting to withdraw, or threatening to withdraw financial support from or on behalf of the woman that had previously been supplied or offered to or on behalf of the woman; . . .[3][or] . . .attempting to change, or threatening to change the woman’s existing housing or residence. . . [4] The state of Missouri cannot criminalize a threat to do that which a person has a lawful constitutional right to do: verbally communicate an intention to take legal action, to “threaten” legal action, to withdraw one’s financial support from a person who is not a spouse or to whom one otherwise has no obligation to provide support, such as a roommate or girlfriend, or “threatening” that a change in roommate status might be occasioned by the subject woman’s giving birth to a child. “Threats” to exercise one’s free will in life choices as to with whom one will live and under what circumstances and at which address cannot be outlawed, inasmuch as such “threats” are merely expressions of a current intention to make lawful changes in life plans in the future. Only actual refusal to pay child support as ordered by a court forms a basis for legal action by the state, and no decree could be entered with reference to a fetus, which has no legal status. “Threatening” nonpayment on behalf of a person not yet in being, or “attempting to refuse” to pay child support for a person not yet in being, are not prosecutable as inchoate offenses. “Threatening” nonpayment is no more than speech, and the notion of “attempting to refuse” to pay child support on behalf of a person not yet in being is a nonsequitur at best, a ludicrous concept. It is not difficult to imagine a pregnant woman informing a man whom she believes to be the biological father of her fetus that she intends to carry to term and expects him to help raise the child, and his response is that she should have an abortion, that he is not going to pay for the child’s support. It is not difficult to imagine a surprised man saying he wants a divorce because he does not want to raise a child, or “attempting to file” for divorce by seeking legal advice, or “threatening” divorce or marital separation. It is not difficult to imagine a cohabiting male partner “threatening to change” the woman’s residence by telling her to find another lease if she intends to have a child. All of these scenarios present mere speech, which cannot be criminalized consistent with the First Amendment and general principles of criminal law governing specific intent to do an act, criminal law regarding inchoate offenses generally, and the obvious distinction between an oral threat to dissolve a marriage and an actual assault on a pregnant woman calculated to coerce her to have an abortion. No doubt oral threats to dissolve marriages occur with greater regularity than our courts ever see and in some households, may regrettably be pillow talk or dinner-table conversation. - S.B. 1058 and H.B. 1831 Represent Profound Interference in Intimate and Familial Relationships, in Violation of the First and Fourteenth Amendments.
Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment to the Constitution. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977); Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942). People who are related to each other by blood or marriage, and people who are unrelated to each other but chose to have relationships, are protected in their associations by the First and Fourteenth Amendments. Compare Moore, 431 U.S. 494, with NAACP v. Alabama, 357 U.S. 449 (1958). Intimate relationships that are nonmarital also receive Fourteenth Amendment Due Process Clause protection. Lawrence v. Texas, 539 U.S. 558 (2003); Stanley v. Illinois, 405 U.S. 645 (1972). The state may no more compel a person to stay married or to refrain from seeking a legal separation on pain of prosecution than it may compel a man to marry in the first place, or prevent mixed-race heterosexual couples from marrying or buying a home together. The state may not dictate decisions so fundamental as whether or not to procreate, either to women, Roe, 410 U.S. 113, or to men, Skinner, 316 U.S. 535. Nor may the state unreasonably dictate decisions related to marriage, because the right to marry—and the right not to—are fundamental rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967). The State of Missouri cannot stand as a censor of verbal threats to dissolve a marriage. Nor can it can compel a man to stay married or require him to continue to cohabit with a pregnant woman on pain of committing a Class A misdemeanor. A wag might observe that S.B. 1058 and H.B. 1831 set up a regime in which men married to pregnant women have de facto “covenant marriages” under this bill. Section 565.310.1 purports to throw a man in jail for being a cad, or even for being cuckolded, or perhaps because he simply does not want a child in his home even if a court later determined he had an obligation to pay for that child’s support. A woman has the right to choose not to be a mother within well-established parameters of law. A man cannot be thrown in jail or fined because he wants a divorce or change in domestic arrangements upon learning of an impending birth. Section 565.310.1 et seq. is accordingly unconstitutional. - S.B. 1058 and H.B. 1831 Violate the Equal Protection Clause by Singling Out Men in Some Cases for Prosecution, and Compounds this Error by Singling Out Married Men as a Class for Prosecution Under Some Provisions.
As Justice Stevens wrote, “There is only one Equal Protection Clause. It requires every state to govern impartially.” Craig v. Boren, 429 U.S. 190 (1976) (Stevens, J., concurring). Section 565.310.1 (4) singles out married men, apart from all other classes of men, for prosecution, since only married men could be guilty of “[f]iling, attempting to file, or threatening to file for dissolution of marriage or legal separation from the woman.” The bills draw no nexus between a substantial interest of the state of Missouri and a suitable means of serving that interest; they simply assume that threats to do what is legal to do (leave one’s wife) or actually leaving one’s wife, are worthy of criminal punishment merely because she is pregnant. The legislative classification singling out men married to pregnant women from all other men cannot survive scrutiny without this nexus, and self-evidently, no nexus exists where the state’s classification seeks to criminalize speech and activity that cannot be constitutionally proscribed. Likewise, Section 565.310.1 (5) is presumably directed at men and would at any rate have a disparate impact on men.[5] Here, too, no nexus can be drawn between a substantial interest of the state of Missouri and a suitable means of serving that interest, because no nexus exists where the state’s classification seeks to criminalize speech and activity that cannot be constitutionally proscribed. Absent a live birth, no child support obligation could ever exist, so in addition to the other defects, the creation of a crime of coercing an abortion “whether or not that obligation [to pay child support] has been established by law at the time of the refusal” has ripeness problems.[6] II. S.B. 1058 AND H.B. 1831 IMPOSE ONEROUS BURDENS ON ABORTION-CARE PROVIDERS, MAY IMPERMISSIBLY COERCE SPEECH, DISTORT A WOMAN’S DECISIONMAKING PROCESS, AND IN SOME CASES TAKE THE DECISION TO END A PREGNANCY AWAY FROM THE WOMAN AND GIVE IT TO HER DOCTOR AND THE STATE. S.B. 1058 and H.B. 1831, Section 188.027.1 et seq. would require the same physician who is to perform an abortion—not a colleague, a nurse, or counselor—to inform the woman 24 hours in advance of his identity, making substitutions impossible. The bills prescribe that patients be informed in person and in writing by this doctor of a laundry list of possible, even if rare, complications, including “possible adverse psychological risks associated with the abortion.” While these requirements may “sound like” the language of informed consent, it should be noted that the bill would require duplication by the physician of what counselors at facilities that provide abortion care already do in terms of describing actual (not speculative or chimerical) risks. As an aspect of this counseling, the facility must also give the woman printed materials prepared by the State of Missouri that describe “the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from conception to full term, including color photographs or images of the developing unborn child at two-week gestational increments.” Section 188.027 (2). The state-prepared materials will describe limbs, heart and brain function, and developmental stage of internal organs. Id. The woman must be told she can view an ultrasound or hear the fetal heartbeat. Id., subpart 4. The State of Missouri will provide her with a list of facilities that will allow her to view the ultrasound without charge, such as “crisis pregnancy centers.” Id.[7] S.B. 1058 and H.B. 1831 dictate the “risk factors” of which physicians must inform the woman, some of them know to be chimerical, such as that a single abortion may interfere with a later healthy pregnancy and the possibility of “adverse psychological risks”—code for “abortion trauma syndrome.” This “syndrome” is a creation of anti-choice zealots. Its proponents include leading actors in the move to place two measures on the November ballot that would effectively ban abortions in Missouri. Scientific research indicates that in fact the chief emotion experienced by women who terminate unwanted pregnancies is relief. See Cohen, Susan, “Abortion and Mental Health: Myths and Realities,” Guttmacher Policy Rev., v. 9, n. 3 (summer 2006). Despite the evident intent of such provisions to induce guilt and shame, they may not be unconstitutional across the board. Just as courts disagree on the permissible limits of Targeted Regulations of Abortion Providers (TRAP laws), they also disagree about how far a state may go in defining informed consent contours. Courts may yet draw a distinction between mandating that a facility show a woman the ultrasound and asking her if she would like to see one. Some courts could even interpret a line or two in the April 2007 Supreme Court case outlawing intact dilation and extraction under almost all circumstances as allowing states to push the envelope in this matter, although the pertinent language is mere dicta (gratuitous language that is not part of the reasoning behind a court’s decision). Some courts might find it significant that S.B. 1058 and H.B. 1831 provide that if a woman cannot read the state’s prepared materials, the physician or a staffer must read them to her, and moreover, must be qualified to answer questions “in a language she can understand.” [8]In the Eighth Circuit, the federal appellate circuit that includes Missouri, some of the lines are being drawn in cases that are now awaiting decision. All of this means that an absolute legal answer from the courts is still awaited, and the answers might differ among the jurisdictions. We do know that no state-mandated “informed consent” is constitutional unless it is, in the Supreme Court’s words, truthful and not misleading. Planned Parenthood of Pa.v. Casey, 505 U.S. 833 (1992). A key consideration of any court would be the extent to which the state, in writing its materials, inserts ideological material, such as statements that human life begins at conception and that abortion terminates a separate human being entitled to constitutional protection. To the extent the state does so, the physician or medical professional has a persuasive argument that he or she is being coerced to speak the state’s ideological message, with which he or she may not agree. Coerced speech presents constitutional problems, and the state may coerce speech or script speech only to serve compelling state interests. Its own interest in promulgating an ideological viewpoint does not trump the individual’s right to refuse to be a microphone for the state’s message. See Wooley v. Maynard, 430 U.S. 705 (1977).[9] These observations apply with equal force to the portion of the bill that provides for anesthesia or analgesic for fetuses at 22 weeks gestational age. Some courts might consider this merely informed consent if the patient were offered the option and not compelled. Courts would generally inquire as to whether state-authored materials proffered in connection with the offer were neutral and scientifically reliable or intended to manipulate. Some might sustain such a provision so long as the decision was the woman’s and not mandated by statute. Some might find such legislation unsustainable based on scientific inaccuracy, leading to the inference that the legislature was motivated by ideology rather than medical concern, since the weight of reliable research suggests a fetus could not feel pain before 23-29 weeks. See Richardson, C.T. & Nash, Elizabeth, “Misinformed Consent: The Medical Accuracy of State-Developed Abortion Counseling Materials,” Guttmacher Policy Rev., v. 9, n. 4 (fall 2006). Apart from legal rectitude, however, social scientists have begun to note the psychological warfare such provisions wage on women. They have noted, for example, that even truthful messages may be misleading when they take advantage of emotional influence to bias a person’s decision. Viewed in this light, “informed consent” statutes of a breadth such as 1058/1831’s have the potential to be an impermissible burden on a woman’s autonomous decision-making ability because they are calculated to bias her choice, not inform it. See Blumenthal, Jeremy, “Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey,” Wash. L. Rev., v. 83 (Feb. 2008). Two other provisions of S.B. 1058 and H.B. 1831 are highly problematic, especially for physicians. Section 565.315.1 provides that “[a]ny person who knowingly performs or induces or assists in performing or inducing an abortion on a woman, with knowledge that the predominant reason the woman is seeking or obtaining the abortion is that the woman is a victim of coerced abortion, is guilty of a Class C felony.” (What constitutes a “coerced abortion” under the bill is a constitutional minefield, as noted earlier.) Section 565.315.3 requires that a physician who “knows” that the “predominant reason” for an abortion is “coercion” as defined in the text, must certify that she cannot give informed consent to an abortion. Thus, her choice is taken from her entirely, and reposed in the physician doing as the state requires, regardless of gestational stage. This accords with neither Roe v. Wade nor any case qualifying it. S.B. 1058/H.B. 1831 work a profound restructuring of doctor-patient roles and relationships, and could set the doctor up for malpractice or disciplinary action if he or she refuses to accept the state’s definition of “coercion” and instead relies on the precedents of Roe and its progeny and years of standard practice regarding patient counseling.
[1] It should be noted also that two ballot initiatives also reference, in their full text as drafted by their proponents, so-called “coerced” abortions, although coercion is not given definitional content in those initiatives. The initiatives set up a regime of civil, not criminal, liability. [2] The bills might also violate the forgotten Ninth Amendment. See generally Griswold v. Connecticut, 381 U.S. 479 (1965) (Goldberg, J., concurring) (arguing that privacy, particularly as regards one’s home and family life, is protected by the Ninth Amendment). No one has remembered the Ninth Amendment since Justice Goldberg. [3] Constitutional analysis aside, a court could not enforce a gratuitous arrangement of support as a contract in the absence of a common-law marriage (not sanctioned in Missouri) or an actual contract of marriage, and it certainly could not enforce a mere “offer” of gratuitous financial support. In the domestic relations context, a court might well have some harsh words about a meretricious (nonmarital) relationship, in which the “offer” might be conditioned on sexual access, a question that might be reached by this language given the fact that the woman is pregnant. Contractual obligations in meretricious relationships must be mutually bargained, with each party giving a thing of value that it is legal to give in order to support the bargain (consideration). It is difficult to see how how cutting off support, or withdrawing an offer of support in a nonmarital relationship, could be grounds for criminal prosecution. [4] See supra note 3. Of course, parents kicking an unemancipated minor out of the house or refusing to pay for her support presents an entirely different question, since parents are obliged to support minor children and can be prosecuted already for child neglect should they fail or refuse to do so. [5] While it is theoretically possible that a same-sex lesbian couple could have made adoption arrangements for the nonbiological parent of a living child through a court in St. Louis County or in an out-of-state county, such arrangements would be rare. The disproportionate impact of prosecutions under this provision would fall on men. [6] Courts may only hear live cases and controversies. Abstract arguments, and matters not yet “ripe” for review because they are speculative at present may not be adjudicated by a United States federal court. U.S. Const., Art. III. Federal courts would not be adjudicating misdemeanor cases or domestic and family cases in general, but a ground of live controversy still must exist even for state courts to hear a case. Some states allow their courts to issue nonprecedential “advisory” opinions. [7] NARAL Pro-Choice Missouri takes the position that these centers often practice deceptive counseling calculated not to help a woman think through the full range of her reproductive options and arrive at the choice that is best for her, but specifically to convince her not to have an abortion. [8] This requires the medical personnel to read aloud a text with which he or she may disagree, which may represent a more serious infringement on first amendment rights than merely disseminating a publication. In addition, the requirement that questions be answered about the materials effectively forces the medical personnel to be the state’s microphone. [9] See note 8. NARAL Pro-Choice Missouri takes the position that the requirement of interpreting the state’s materials so as to answer questions about them interferes with independent medical judgment and runs a substantial risk of unconstitutionally coercing speech. |
| Fetal Personhood |
| Bill Number: |
SB 766 [ view bill ] |
| Status: |
Hearing 1/15/08 |
| Sponsor(s): |
Goodman |
Please see A Legislative Analysis of SB 766 for more information.
|
| Fetal Ultrasound |
| Bill Number: |
HB 1472 [ view bill ] |
| Status: |
This Bill Replaced with a Substitute Bill: HB 1831 |
| Sponsor(s): |
Cunningham, Jane (86) |
In addition to existing informed consent procedures, women seeking an abortion would be required to view an ultrasound and listen to the heartbeat of the fetus at least 24 hours before the procedure. Politicians should not require a doctor to perform a medically unnecessary ultrasound, nor should they force a woman to view an ultrasound against her will. This is an unconscionable intrusion into the doctor-patient relationship. This bill is singling out one procedure. Patients are not forced to view x-rays, cat scans, or video of surgeries - they may if they choose to but do not have to if they are not comfortable doing so. Singling out abortion in this way is purely political. |
| Intrusive Abortion Reporting |
| Bill Number: |
1984 [ view bill ] |
| Status: |
Committee Voted Do Pass |
| Sponsor(s): |
Sander |
For more information please see A Legal Analysis of HB 1984.
|
| Parental Rights |
| Bill Number: |
H.B. 1316 [ view bill ] |
| Status: |
Hearing Completed 1/17/08 |
| Sponsor(s): |
Davis, Cynthia |
This proposed legislation directly attacks Missouri's Judicial Bypass Option for minors seeking abortions. For a legislative analysis of H.B. 1316 please click here. |
| Pharmacy Refusal and Misinformation |
| Bill Number: |
HB 1625 [ view bill ] |
| Status: |
Public Hearing Completed 2/12/08 |
| Sponsor(s): |
Emery, Edgar (126) |
This legislation would grant pharmacies in Missouri the right to refuse to stock any medicine construed to be an abortifacient. The language of the bill persists in perpetuating the myth that EC is an abortifacient and puts EC in the same class as RU-486, a medical abortion. Please click here for a legislative analysis of HB 1625. |
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