NARAL Pro-Choice Missouri : Issues : Fact Sheets

SUMMARY: H.B. 46/434’s definition of “coerced abortion” blatantly violates the First and Fourteenth Amendments by interfering in intimate and familial association and violating substantive due process privacy principles, and by purporting to take a woman’s consent to abortion away from her entirely based on personal life circumstances singled out by the General Assembly for special, punitive treatment. The bill’s “informed consent” and ultrasound provisions, while probably constitutional, are problematic for doctors and providers. Additionally, though less importantly, portions of H.B. 46/434 may conflict with college scholarship contractual obligations or the institution’s expectations, and portions of it may present conflicts with the federal Pregnancy Discrimination Act.

I. H.B. 46/434 INTERFERES WITH THE RIGHT OF INTIMATE/FAMILIAL ASSOCIATION AND GENERAL PRIVACY PRINCIPLES.

A. H.B. 46/434 Represents Profound Interference in Intimate and Familial Relationships, in Violation of the First and Fourteenth Amendments.

A person commits the crime of coercing an abortion if the person knowingly coerces a woman to seek or obtain an abortion by . . committing, attempting to commit, or conspiring to commit. . .assault. . . domestic assault. . .stalking or aggravated stalking. . .[or] forcibly or without her knowledge administering to or causing the woman to ingest any poison, drug, or other substance intended to cause an abortion, or attempting or threatening to do so; [or] [d]ischarging, attempting to discharge, or threatening to discharge the female employee or changing, attempting to change, or threatening to change her compensation, terms, conditions, or privileges of employment; or [r]evoking, attempting to revoke, or threatening to revoke a scholarship awarded to the woman by a public or private institution of higher education. . .[1]

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 are protected in their associations by the First and Fourteenth Amendments. Cf. 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 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 decision to marry—and the decision 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). Simply put, there is a sphere of intimate association into which the state may not intrude.

Contrary to the principles of these cases, H.B. 46/434 interferes with familial relationships and substitutes the judgment of the Missouri General Assembly for that of the pregnant woman. In essence, the Missouri General Assembly has decided that some women do not have what it paternalistically has determined is a “good enough reason” to have an abortion—the reality or fear of assault, poisoning, domestic abuse, stalking, or other unique personal circumstances are not deemed sufficient reasons. Ironically, in the name of “protecting” women from coercion, the Missouri House of Representatives has victimized the most vulnerable women: those who are stalked, assaulted, or even poisoned by their partners, husbands, or family members. It is particularly ironic that a bill that purports to “protect” women would deny a woman an abortion in a case in which her tormentor poisoned her in order to induce an abortion. This provision essentially would force a pregnant woman to carry a fetus that had been grievously harmed or deformed by the poisoning to term, because pursuant to the bill’s final paragraph, a doctor must find that a woman who has been poisoned lacks the ability to give her informed consent to an abortion. The doctor who knows that a woman is a victim of poisoning in order to induce abortion who allows her to choose to have an abortion is guilty of a Class C felony. See Sec. 565.315.1.

Removing from the woman the choice to terminate a pregnancy when there is a nonviable fetus or when the fetus has not reached viability is plainly unconstitutional under Roe v. Wade. Requiring doctors to certify that women who are assaulted, stalked, raped, or poisoned as coercive tactics therefore lack the ability to consent to an abortion is the poorest possible policy choice. A woman in such circumstances may very well not wish to bring a child into them.

These provisions are untenable intrusions into the woman’s privacy. The state of Missouri may not determine whether domestic assault or stalking is an insufficiently good reason to terminate a pregnancy. Nor may it force a pregnant woman to carry to term a fetus that may have been grievously injured through deliberate drugging or poisoning. Removing the decision about terminating a pregnancy from the woman and instead using a ginned-up concept of “informed consent” to force doctors to deny her the decision is unconstitutional.[2]

H.B. 46/434, Section 188.027.1 et seq., is replete with problems for patients and doctors and their relationship. The bill prescribes that medical professionals deliver in writing a laundry list of rare complications and directs that they include “possible adverse psychological risks associated with the abortion.” While these requirements may “sound like” the language of informed consent, they open the door to giving the state imprimatur to coercing women, through guilt and shame, to bear children they do not want. For example, requiring medical professionals to provide patients with color photographs of a fetus at two-week gestational intervals, requiring them to tell the patient she can view an ultrasound or hear the fetal heartbeat at state-approved facilities without charge, requiring women to be counseled about largely chimerical risk factors, [3]could be construed as a state-sponsored message that the woman should carry her pregnancy to term.

Despite the evident intent of such provisions to induce guilt and shame, and thereby deter the woman from obtaining an abortion, they may well be constitutional depending on the jurisdiction in which one lives, or even the court or judge by which a case is heard. Just as courts may disagree on the permissible limits of a wide range of Targeted Regulations of Abortion Providers (TRAP) laws, so they may disagree on how far a state may go in defining the contours of informed consent. Courts may yet draw a distinction between mandating that a medical facility show a woman an ultrasound and asking her if she wants to see one, and between mandating fetal anesthesia and asking the woman if she wants it. Other courts may find the whole enterprise insidiously coercive. Still other courts might examine fetal anesthesia provisions and inquire whether such legislation were prima facie manipulative because medically suspect (since the weight of reliable research indicates that a fetus could not feel pain before 23-29 weeks), regardless of whether fetal anesthesia were voluntary or mandatory.[4]

State-mandated “informed consent” laws will survive constitutional muster only if they are truthful and not misleading. Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992). Where the state sneaks coercive “ideological” materials into required informed consent, it may do so only to promote compelling state interests. The state’s 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). These precepts apply to state-required physician “scripts,” state-written materials as required by H.B. 46/434, and statutorily mandated “optional” fetal ultrasounds and fetal heartbeat experiences for the abortion-care patient.[5]

In the Eighth Circuit, which includes Missouri, the court sitting en banc[6] rejected Planned Parenthood’s claims that a South Dakota statute “scripted” physicians with an ideological message in violation of their free-speech rights. The court rejected the argument that a South Dakota statute requiring physicians to inform women seeking abortions that “the abortion will terminate the life of a whole, separate, unique, living human being” forced physicians to ally themselves with a state-sponsored viewpoint that a fetus is a “person” at law. See Planned Parenthood Minnesota, et al. v. Rounds, 530 F.3d 724, 729-30 (July 2008) (en banc).

The Eighth Circuit concluded the speech was truthful, not misleading, and not ideological because it found South Dakota’s medical evidence on the definition of what constitutes a “human being”—wholly apart from the question of what constitutes a person at law—sufficiently medically truthful and not misleading as to render the operational provisions nonideological (and therefore, constitutional).

The reasoning of the opinion is easily critiqued for circularity, and there are ample grounds for distinguishing it based on a particular statute’s language and provisions. The entire opinion rests on the reading of the definition of “human being” based on highly specific medical evidence in the case—which makes the reasoning easy to distinguish. In the main, though, the opinion sounds the first clear Circuit trend about the way in which that court is inclined to lean, for now, on coerced speech claims in abortion-regulation cases. As the predecessor analysis of this bill suggested in 2008, dicta (cast-off language) in the 2007 Supreme Court Gonzales opinion (criminalizing intact D&E when “knowingly” performed in non-emergency situations) was used by the Eighth Circuit in Rounds to reject coerced-speech constitutional claims by physicians in “informed consent” abortion-regulation cases.

Apart from legal rectitude, however, social scientists have begun to note the psychological warfare provisions such as the ones in this bill 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 woman’s decision. Viewed in this light, legislation of the breadth of H.B. 46/434 have the potential to pose an impermissible burden on a woman’s autonomous decision-making ability because they are calculated to bias, not to inform, her choice. See Blumenthal, Jeremy, “Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey,” 83 Wash. L. Rev. (Feb. 2008).

III. H.B. 46/434 CONTAINS PROVISIONS THAT MAY BE INCONSISTENT WITH THE FEDERAL PREGNANCY DISCRIMINATION ACT.

Section 188.108 and Section 565.310 (3) contain provisions that create a complicated problem. Section 188.108 provides: “It shall never be a bona fide occupational qualification that an employee or applicant for employment seek or obtain an abortion.”[7] Section 565.310 (3) purports to define changing the terms and conditions of a woman’s employment, or “threatening” to do so, as the crime of coercing an abortion.

It already is illegal under the Pregnancy Discrimination Act, 42 U.S.C. Section 2000 (e)-k, to discriminate against a woman on account of pregnancy if the woman still is capable of doing her job. Suppose that a woman works at a hardware store or in a stocking warehouse with a requirement that all employees be able to lift 40 pounds overhead, and that this particular woman’s response to pregnancy renders her unable to meet that requirement.

The woman has a right to remain pregnant. The employer has a right to move any employee who is unable to do the job to light duty or a different job upon learning that the employee cannot meet the lifting requirement of the current position. This is a job-related, neutral application of a valid work requirement on the employer’s part, and is not motivated by animus or gender-based stereotyping. The employer with 15 or more employees (the only employers subject to the PDA) would be protected in making such a transfer or change in assignment. H.B. 46/434, however, would have the effect of turning the employer’s gesture of accommodation to the employee while respecting its own business needs into the basis of the employer’s criminal liability. A Missouri employer of any size could be sued for making any change to a pregnant woman’s job that she regards as disadvantageous, regardless of whether her performance in the accustomed job were suffering as a result of her pregnant condition, if she alleges abortion was mentioned by the employer and a jury or judge believes her. There is no requirement that there be corroborating evidence of the charge.

This regime would drastically reform the expectation of Title VII’s PDA that a woman who can do her job or a lighter job while pregnant is protected from discrimination but that the employer, too, has a right to protect itself by insisting on adherence to legitimate, neutrally applied workplace rules.

[1] This scholarship provision probably cannot withstand the scrutiny of common sense, let alone judicial scrutiny. The provision reaches ecclesiastical and sectarian institutions, since it reaches “private” colleges and universities. Private colleges and universities may enforce their own policies, including religious/doctrinally motivated ones, on their students. Thus, a sectarian private college that has a policy holding that premarital sex is sinful may expel a pregnant unmarried student and may certainly revoke a scholarship on that ground (even if it is doubtful that an institution with such a policy would “knowingly coerce” that student to seek or obtain an abortion). Relatedly, any public or private institution of higher learning that had awarded an athletic scholarship to a woman who became pregnant might have grounds to revoke it that are analogous to the defense to an employment discrimination suit known as a bona fide occupational qualification (BFOQ). If a pregnant woman on an athletic scholarship could not, e.g., dunk a basketball, stay within a weight class, or return a volleyball serve up to speed—or has to miss team practice due to morning sickness—the institution need not fear a successful lawsuit if it rescinds a scholarship. Moreover, the General Assembly cannot, consistent with First Amendment free speech rights, turn a verbal “threat” to revoke a scholarship into a felony.

[2] In addition, the bill interferes with the patient-physician relationship. It requires the physician to take action and make professional judgments that he might not otherwise wish to make.

[3] Into this category would fall the chimerical abortion-breast cancer link, repudiated as a creature of propaganda and not science by the Centers for Disease Control, and “abortion trauma syndrome,” which is a creation of anti-choice zealots. (It could, nonetheless, be what the drafters intend to be disclosed as an “adverse psychological risk” in Section 188.027.1 et seq. In fact, research indicates that 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).)

[4] Section 188.027(5) (f) requires that the medical facility inform the woman that fetal anesthesia is available. It also requires the facility to inform the woman that by 22 weeks’ gestational age the fetus has the necessary anatomical structures/apparatus to feel pain, and that at 22 weeks’ gestational age a fetus may have been observed in a study to evade stimuli that the researchers interpreted as a response to pain. The weight of scientific research, however, suggests that a fetus could not feel pain earlier than 23-29 weeks’ gestational age. See.e.g., Richardson, C.T. & Nash, Elizabeth, “Misinformed Consent: The Medical Accuracy of State-Developed Counseling Materials,” Guttermacher Policy Rev., v. 9, n. 4 (fall 2006).

[5] It cannot be overstressed that some courts would consider just about every script disclosing medical risks to be informed consent, and as to ultrasounds and fetal heartbeat provisions, would find them unobjectionable (as part of informed consent) if they were voluntary and not mandatory.

[6] The full court, not the usual three-judge panel of a court of appeals.

[7] This is inartfully expressed. Technically, a BFOQ involves a protected class, like race or gender. “Having an abortion” is not really a BFOQ in any sense in which an employment lawyer would understand the term, because “women having an abortion” is not a protected class.