Legal Analysis of Missouri Abortion Ban
NOTE: At this time, two ballot initiatives have been filed. The text that follows is an analysis of the ballot initiative filed in November 2007. The second ballot initiative, filed in February 2008, is substantially similar to the the earlier-filed one, but is more nuanced. Accordingly, while most of this written analysis is applicable to the February 2008 filing, not all of the analysis is. We are holding small-group briefings on the second ballot initiative. The ballot initiatives are currently in litigation. We have reports that supporters of the initiatives are gathering signatures for the later-filed initiative. Legal analysis of abortion ban initiative petition The deceptively titled "Prevention of Coerced and Unsafe Abortions Act" is functionally a near-total abortion ban. Under current law, its sweeping scope makes it blatantly unconstitutional. If enacted pursuant to a ballot initiative in 2008, the virtual ban would take effect immediately and would certainly invite litigation. The measure also pollutes our politics by subjecting the constitutional rights of Missouri women to a plebiscite. That is not how we transact the business of the people. Fundamental civil rights are not subject to being voted on and revoked by popular vote. The organization that submitted the proposal, the Elliot Institute, is an Illinoisanti-choice group that runs websites publishing “junk science” anti-choice materials. The Elliot Institute has been perhaps the most high-profile “research” proponent of the medically disproved “post-abortion trauma syndrome.”
The ballot initiative would ban virtually all abortions in Missouri by making abortion in almost all cases medical malpractice. The proposed law would make it medical malpractice for a doctor to perform an abortion unless ALL of the following conditions are met: 1) the abortion is necessary to prevent a woman’s imminent death or to protect her health under very limited circumstances; 2) a licensed psychologist, social worker, or registered nurse performs an extensive evaluation of the woman seeking an abortion, including a written report; and 3) the woman is provided with detailed statistical information about “risk factors,” and there are no other options that can lessen the health risks associated with continuing the pregnancy to a degree less than those associated with an abortion. Other Notable Provisions § The physician must wait 48 hours after providing the required information for “reflection time,” or else bear the burden of proof in a civil case of proving that less time was sufficient for that individual woman. § A medical emergency is defined so narrowly that even some women for whom an abortion is necessary to prevent their death would still be subject to the bill’s counseling requirements and “reflection time.” § Even physicians or other health care providers who do not perform abortions are liable under the proposed law; they must ensure that the physician to whom they refer a woman for an abortion complies with the proposed law. § In additional to medical malpractice, other “remedies” available under the proposed law are monetary damages for a woman or her survivors, and “recovery for the woman for the death of her unborn child under the Wrongful Death Act.” § Apparently in anticipation of litigation, the proposed law presumptively qualifies doctors who do not perform abortions as expert witnesses regarding among other things “problem pregnancies.” § It is also important to note that “risk factor” (as referenced in #3 above) is very broadly defined. As a result, biased, medically inaccurate, unreliable “studies” that appear in virtually any medical publication (even those which are strongly anti-choice) would be deemed reliable and doctors would be compelled to disclose information from such studies to their patients. This is an unacceptable intrusion into the doctor-patient relationship, even beyond the intrusion that the overall ban represents.
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