Another Republican Assault On Abortion Rights

Following in the footsteps of Alabama, the Missouri legislature has passed a law that would severely restrict abortion rights in the Show Me State.

Missouri has become the latest state to pass an anti-abortion bill that clearly is meant only to exist as a challenge to the Supreme Court precedents set down in Roe v. Wade and Planned Parenthood v Casey. This bill is slightly more liberal than the law passed earlier this week in Alabama, which effectively purports to outlaw all abortions, but not by much. Instead of an outright ban in essentially all cases, the Missouri law bans almost all abortions after the eighth week of pregnancy:

The Missouri House passed a bill Friday to ban abortions after a fetal heartbeat is detected, a measure that comes amid a flurry of anti-abortion legislation in statehouses across the county as Republican lawmakers mount direct challenges to federal protections for the procedure.

The bill now moves to the desk of Gov. Mike Parson, a Republican, who is expected to sign it into law.

If enacted, Missouri would become the fifth state this year to adopt such a policy, which would prohibit abortion at about eight weeks, before many women know they are pregnant. The only exceptions would be when the mother’s life is at risk, but not for cases of rape or incest.

Anti-abortion legislation has been passing at a rapid pace, mostly in the South, in an effort to challenge Roe v. Wade, the Supreme Court’s 1973 ruling that established federal protections for abortion.

Under the Missouri law, doctors who break the law would be prosecuted and could receive prison sentences of five to 15 years. Women who seek abortions will not be prosecuted.

“Until the day that we no longer have abortions in this country, I will never waver in the fight for life,” Mr. Parson said this week at a gathering of supporters of the bill.

Kentucky, Mississippi, Ohio and Georgia also have banned the procedure once fetal cardiac activity is detected. Many states say heartbeat bills would prohibit abortion at around six weeks; Missouri’s bill estimated that it would be at around eight weeks.

Even if the bill is signed into law, that does not mean it will go into effect. Heartbeat bills have passed, and been suspended in court challenges, in several states. Two bans, in Iowa and North Dakota, died in court challenges before this year, and Kentucky’s bill, which passed this year, was suspended by a judge.

Dr. David Eisenberg, the medical director of Reproductive Health Services, a Planned Parenthood clinic in Missouri, which is the last abortion provider in the state, said he was worried that, with all the news and headlines, women would be left with the impression that abortion was no longer legal in Missouri at all.

As with the Alabama law, the bill in Missouri contains no exceptions for pregnancies resulting from rape or incest, meaning that a 12-year-old girl impregnated due to being raped by a family member would be unable to get an abortion unless she did so within the first two months of pregnancy, a time period during which many women and girls often don’t even realize they are pregnant to begin with. It is also worth noting that the date at which the proposed law would purport to ban abortion is not medically significant in any respect. It fails, for example, to comply with the Roe and Casey standard that provides that the state may have an interest in more heavily regulating abortion once the pregnancy reaches the point where the fetus could realistically survive outside of the mother’s womb. Additionally, the law ignores the fact that it would purport to ban abortion long before the developing fetus reaches the point where it is becoming even remotely human.

Missouri’s Governor, Republican Mike Parson, has not indicated whether or not he will sign the bill into law but, as with Alabama Governor Kay Ivey earlier this week, it is expected based on his previous statements that he will indeed sign the bill into law. Prior to the law’s passage by the State House of Representatives, for example, he said that it was “time to make Missouri the most pro-life state in the country.” In this respect, he is being consistent with the actions of Republicans and state legislatures across the country that have acted to restrict abortion rights via regulation, outright bans, and other methods that are clearly intended to achieve the purpose of serving as the vehicle for the Supreme Court to overturn the Roe and Casey precedents given the change in the makeup of the Supreme Court.

As with the far more restrictive Alabama law, though, I suspect that the most likely outcome is not the one that anti-abortion advocates are hoping for. It’s clear, for example, that this law will no doubt be subjected to legal challenges from Planned Parenthood and other organizations. Given the fact that the lower courts are legally bound to follow Supreme Court precedent, the most likely outcome at both the District Court level and in the Eighth Circuit Court of Appeals, which is where any appeal would be heard. My expectation is that both courts will rule against the state because this law is entirely incompatible with the precedent laid down in Roe and Casey and largely reaffirmed just two years ago in Whole Women’s Health v. Hellerstadt et al, a case in which a 5-3 Supreme Court struck down a series of Texas laws that were clearly designed to make it difficult for abortion clinics to operate in the state

From the Circuit Court of Appeals, of course, the losing party would have the option of appealing the matter to the Supreme Court. At that point, the question will be whether there are four Justices willing to hear the appeal. While the fact that there is a five-Justice majority on the court suggests that there would be sufficient support for the court to accept the case, there’s also a good chance that the Court may decline to hear the case altogether due to the fact that it is not a very good vehicle for a direct challenge against Roe. Indeed, there is good reason to believe that Chief Justice Roberts would be reluctant to see the Court use a deeply flawed law like this or the case that might arise out of Alabama to take on the Roe precedent even assuming he is inclined to do so at this time.

Admittedly, I could be wrong about this. The Missouri and/or Alabama laws could end up before a District Court Judge intent on rejecting Roe and its progeny, and his or her decision could end up being upheld by the Supreme Court. Additionally, the Supreme Court could end up accepting an appeal regardless of the holding below and the Justices could end up issuing a ruling that substantially limits the precedents in Roe, Casey, and Hellerstadt or strikes them down altogether. If that happens, then abortion would become a front-and-center political issue to a greater extent than it has over the past 47 years since Roe was decided. At that point, though, Republicans may find that they have achieved a legal victory that creates more political headaches than anticipated.

FILED UNDER: Fourteenth Amendment, Gender Issues, Law and the Courts, U.S. Constitution, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. SKI says:

    At that point, though, Republicans may find that they have achieved a legal victory that creates more political headaches than anticipated.

    While I appreciate this is true and with the caveat that the following is not aimed directly at you, Doug as this is a common “take” but for the love of all that is holy, can we please stop talking about decisions that dramatically and detrimentally impact fellow humans in terms of their impact on partisan politics.

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  2. Sleeping Dog says:

    @SKI:
    Ski, your point is well taken, but the hard cold reality is that after acknowledging how disastrous this is for women, we move back to the political arena to determine how to counter it and take advantage of the fallout from the decision.

  3. SKI says:

    @Sleeping Dog: Political leaders and organizers absolutely should.

    The rest of us, and especially journalists, should cover/discuss the facts and reality, not the “horse race”. Because the impact on actual people is the “cold hard reality” that is most important and losing site of that makes it immeasurably harder to rectify.

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  4. Jen says:

    Awful, but unsurprising.

    An interesting opinion piece in WaPo today makes a good and under-reported point. These laws, were they to stand, actually don’t take us back to pre-Roe, they go significantly further by conferring personhood on embryos. Anyone who can’t see the problems this would cause isn’t thinking.

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  5. Gustopher says:

    Roughly 50% of white women voted for Donald Trump, which I’ll use as a proxy for white women’s support of Republicans up and down the ballot. Some women are pro-life, but not 50%.

    Perhaps they shouldn’t have voted Republican.

    It’s not like this was a secret plan, or an unforeseen consequence, this is Republicans doing what they’ve been saying they want to do for the past forty years.

    There’s no cure for stupid. If someone says they want to hurt you or take away your rights, believe them.

    The Supreme Court will uphold some variation of one of these, balancing privacy against state interest or the rights of the zygote.

    It’s going to be hard to fix the Supreme Court, especially if this trend involves pro-choice voters moving to pro-choice states.

  6. Gustopher says:

    @SKI: Part of the story is the Republican overreach, so… no.

  7. Daryl and his brother Darryl says:

    Alabama takes $1.66 from Federal coffers for every dollar they send to Washington.
    Missouri takes $1.32.
    CT, where I live; $0.69. Progressive states are supporting these ass-backward places.
    If they aren’t willing to live in modern society then I say we sever them from the union and save blue states some money.

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  8. Teve says:

    @Gustopher:

    I would have guessed it would be a bunch of men who were pro-life and women pro-choice but that guess is completely wrong. Almost half of men and almost half of women are pro-life and ditto pro-choice.

    https://news.gallup.com/poll/244709/pro-choice-pro-life-2018-demographic-tables.aspx

    Men and women poll virtually identical on the subject. There’s basically no correlation between abortion belief and gender. The correlation with anti-abortion beliefs is with being poorer, older, and less educated, but the strongest correlation is being more religious.

  9. Teve says:

    @Daryl and his brother Darryl: @Daryl and his brother Darryl: I find those ideas entertaining despite the fact that had they happened years ago I would have been born into the third world country of Jesustan, and would probably be working in the soybean mines as we speak.

    Breaking up into new USA and Jesustan seems attractive but in the end it would be worse than the current situation. More than half the landmass of the current US would become a third world country with essentially no ground, water, or air pollution controls. Global Warming would inflect upward. The new US would still have to fund Social Security and Medicare for people who retired in New York and moved to Arizona and Florida and such. And the new US border would be completely indefensible.

  10. Gustopher says:

    @Teve: self-identification as “pro-life” and “pro-choice” is not as predictive of policy preferences as people assume. There’s a lot of middle ground, and the self-identification becomes a tribal label. There’s basically no one that doesn’t apply one label or the other to themselves (3%, with another 3% saying they don’t know what the levels mean)

    Self-identified “pro-choice” often means pro-choice up until the third trimester, and self-identified “pro-life” often means “well, pro-life after the first trimester”

    https://news.gallup.com/poll/1576/abortion.aspx

    This isn’t broken down by gender, alas, and I’m too lazy to look for better data.

    60% think abortion should be legal in the first three months, 34% illegal, 5% mushy middle, 1% rounded away.

    That’s about 2-1. At least 10-15% are voting Republican despite being basically pro-choice.

    64% do not want Roe v. Wade overturned.

  11. Gustopher says:

    @Daryl and his brother Darryl: I would like to see a federal tax surcharge on the taker states — small, but enough to rub it in.

  12. The abyss says:

    @SKI:

    can we please stop talking about decisions that dramatically and detrimentally impact fellow humans in terms of their impact on partisan politics.

    As you noted I wish no offense to you, but no, we can’t. The damage to our cherished beliefs far outweighs any damage to mere human beings.

  13. Teve says:

    @Gustopher:

    I would love to have infinitely detailed and nuanced crosstabs for everything but good data is hard to find. However even when you find more nuanced data than just pro-life / pro-choice, men and women poll almost exactly the same on subtler questions. the big correlation for different abortion beliefs really is religion.

  14. Lynn says:

    ““Until the day that we no longer have abortions in this country . . .” Mr. Parson said this week at a gathering of supporters of the bill.”

    That’s never going to happen. Women will still have abortions; the rich will go to other countries, the poor will go to some back-alley clinic. And more will die.

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  15. grumpy realist says:

    @Jen: …especially since it’s estimated that a high percentage of embryos fail to make it.

    But then, we’re dealing with idiots who think we can implant the results from an ectopic pregnancy after the fallopian tube has been removed.

  16. gVOR08 says:

    I saw a WAPO article this morning that showed a lot of the context around the beginning of abortion laws in the US. For lack of a better place to put it, I wrote a comment on the last Open Forum, which is pretty dead by now. So I’ll take the liberty of re-posting it here, in a more appropriate thread:
    WAPO has an article up on passage of the first abortion law in the US. It was passed in reaction to a sex scandal involving a charismatic pastor. Home medical guidebooks at the time commonly included “instructions to eliminate “obstructed menses” — a euphemism for early pregnancy.”

    In 1821, the (Connecticut) General Assembly passed a bill banning medicinal abortion after quickening, with those who provided the medicine — not the pregnant woman — facing prosecution. Within 20 years, 10 of 26 states followed suit with similar laws.

    Mohr, the historian, notes that many abortion-inducing substances could also cause the death of the mother in larger quantities, so the law “might best be characterized as a poison-control measure.”

    Mechanical abortion was noticeably absent from the ban. Inniss said the disparity is probably due to who was performing the different methods of abortion. Mechanical abortions were mostly done by the fledgling medical establishment, which was white and male, “whereas many medicinal abortions were done by grannies and midwives, many of them immigrants and formerly enslaved women, or even enslaved women,” she said.

    Some things never change.

    So…. If we are to be guided by the wisdom of the founders, we should note that when they wrote the constitution abortion was legal, and apparently fairly common. And they didn’t feel moved to say anything about it.

  17. Paine says:

    Put me in the camp of those tired of fighting this battle on behalf of others. I’m a single guy with no kids in a reliably blue state. Trump got 64% of the vote from non-college educated white women and 52% from white women overall. Why in god’s name should I go to bat for demographics who vote for the party dead set on taking their rights away? It’s not like their views on abortion are part of some obscure plank on their party platform. It’s unfortunate what’s happening but it’s what the people of MO, GA, and AL want, apparently. It’s not what the American people as a whole want, but we have the Electoral COllege to thank for that disconnect.

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  18. Gustopher says:

    @Teve: I blame the pro-choice-ish* Republican-voting women more than the similar men. It affects them more immediately and directly — relatively few men have had a late period (and those that have tend to vote Democrat), so any pregnancy scare is a step removed and less of a visceral life experience.

    Maybe abortion access is less of a priority for pro-choice-ish Republican women than marginal tax rates for the wealthy or hating on the Latinos and Muslims.

    *: pro-choice-ish — does not want Roe v. Wade overturned, wants 1st trimester abortions legal, regardless of whether they call themselves pro-life or pro-choice

  19. Andre Kenji de Sousa says:

    @Teve:

    I would have guessed it would be a bunch of men who were pro-life and women pro-choice but that guess is completely wrong. Almost half of men and almost half of women are pro-life and ditto pro-choice.

    The cynical take on abortion is that the number of women that are directly affected by abortion is relatively small. Like, even women that had abortions in the past are no more likely to support abortion rights.

    For women that are young, sexually active and specially unmarried or don’t have children the idea of an unwanted pregnancy looks horrible and plausible to the point that they can feel abortion restrictions affect them.

    But even young women with children can get their tubes tied. Women without children in their thirties and forties are less fertile, and more likely to see an unwanted/unplanned pregnancy as something that they might be able to absorb or even want to have.

    Exit polls show that 55% of voters are over 45. Like, these women could not get pregnant even if they wanted to, unless they resort to artificial fertilization.

    A guy in their twenties that does not want to have a pregnant girlfriend is far more likely to be personally affected by abortion rights than more than half of the women voters in the United States.

  20. Teve says:

    @Andre Kenji de Sousa: and the evidence shows post-menopausal demographics are much more anti-abortion than 30 yros.

  21. Teve says:

    But again, the biggest correlation coefficient for abortion is religion.

  22. Andre Kenji de Sousa says:

    @Teve: Yes, but many people that are nominally pro-choice vote for anti-choice politicians, in part because they are not directly affected by abortion restrictions. As I pointed out even pre-menopausal women are likely not to be directly affected by abortion restrictions.

    In fact, it makes no sense a bunch of post-menopausal women saying that abortion is their fight, but that Men that have sex with fertile women are not affected by abortion…

  23. Teve says:

    It’s an example of asymmetrical enthusiasm. Most people don’t want abortion eliminated, but don’t care all that much. So Republican assholes are free to cater to the extremists. It’s the same with guns. Most people want reasonable gun-control but don’t care all that much about it. On the other side, a small minority of enthusiastic lunatics who will spend all day shutting down the Congressional switchboard.

  24. inhumans99 says:

    @Paine:

    I see that you got a down vote but I am right there with you. It is easy for me to say the following sitting in my nice apartment in Fremont, CA but if this is what the bible belt states want, I say let them have it. It make us both sound a bit like an a hole (which if you knew me is so far removed from the type of individual that I am), but let these states experience the backlash that comes when a whole lot of women have to fight to stay out of jail because they have been accused of a felony due to a miscarriage being mistaken by a well meaning but perhaps overly religious doctor as a successful attempt at an abortion.

    I think the legislature in these states have not thought things through but this might be what it takes to get some conservatives to push back against such draconian laws being passed to control a woman’s agency.

    I say this as a Catholic who in the past has had to occasionally wear multiple hats at mass (being a lector, handing out the body of Christ, and some light alter boy duties on occasion), the point being that most people might assume I am anti abortion due to my religious affiliation (lapsed only insofar as going to church on a weekly basis, but I very much keep the faith) but I am more pro-choice than one would think (under certain circumstances such as a very late term decision to abort, which is a decision I would abhore, I can fall into the anti-abortion camp).

    Of course, even with late-term abortions there may be extenuating circumstances such as a doctor confirming the baby would be born still born or the need to get the not yet mature fetus out asap to prevent the death of the mother or allow a doctor to prescribe medicines that are necessary to maintain the mother’s ongoing health (medicines that unfortunately might interfere with being able to successfully deliver a healthy full term baby).

    I really should not reveal private info on the web, but I believe I am the middle child among my three siblings that was born after 2 miscarriages, so these laws as written probably need to be tweaked so as to prevent straight up innocent women from ending up in jail through no fault of their own. I obviously blanche at the thought that someone like my very Catholic Sicilian mother could be put through the wringer of the justice system because a zealot/fanatic with a job in a hospital decided to render their own judgement as to whether or not a miscarriage was a natural one or induced by the mother (i.e., the fetus was artificially aborted).

    Sorry for long as heck reply folks!

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  25. JKB says:

    Turns out this is much ado about nothing. As of Dec 2018, 4 states already had 6 week or less abortion laws (in litigation). So this is just 3 more of the same. Something for the chatterers to go on about.

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  26. JohnMcC says:

    Deep dive into the polling and opinion-history of Roe and the abortion debate at Slate by Wm Saletan. I’ll try:

    https://slate.com/news-and-politics/2019/05/alabama-abortion-ban-disaster-for-republicans.html

  27. The abyss that is the soul of cracker says:

    @JKB: And yet, I suspect that if the headline read “3 states to raise income taxes t0 40%” and I noted that 4 were already there, you’d still think it was a big deal because of the trend line. Eh Cisco?

  28. The abyss that is the soul of cracker says:

    @Teve: The increase in support by post-menopausal women is in keeping with an attitude among conservative boomers (but maybe boomers at large, who can say) of being less concerned about the society at large. Sharon Angle expressed it well on the stump in Nevada when she said that she was tired of the government spending money on things she didn’t want and couldn’t use.

    In the past, the parents of boomers became less interested in voting for school levies because “what do I need schools for? My kids are grown,” so maybe we just learned from them. In any event…

  29. Roger says:

    @Daryl and his brother Darryl: As a lifelong resident of the Show-Me State, I want to push back a little on those of you who want to kick us out of the union. Check out an election map of Missouri and amidst the sea of red you’ll see a blob of blue on the west side. That’s my home, the Kansas City metro area, where about a third of the people in the state live. Look on the right and you’ll find another blue blob, the St. Louis metro area, where roughly another third live. Halfway in between, down the I-70 corridor, the state’s final blue speck is in Columbia, home of the almost criminally underfunded University of Missouri. (MIZ-ZOU—Go Tigers). You may think you’re aiming at Rush Limbaugh’s hometown of Cape Girardeau when you make these comments, but you’re hitting us, too.

    There’s no doubt that Missouri is reliably red these days, but it’s not as thoroughly red as you probably think. We have a state legislature that, based on the general partisan leaning of the state, should be moderately Republican. Instead, because of gerrymandering, Democrats are virtually an endangered species in Jeff City. It got so bad that in the last election a ballot initiative measure called Clean Missouri that calls for non-partisan redistricting passed with over 60% of the vote. Of course, the Republican leadership immediately set about to repeal Clean Missouri, but the repeal effort died when three of the five Republican senators on the key committee missed the vote last week that would have gotten the repeal bill out of committee and to the floor. (God bless Republican legislators who don’t pay enough attention to the rules of their job to know that you can’t cast an absentee ballot in a Senate Committee vote). If Clean Missouri succeeds in getting a non-gerrymandered General Assembly, we’ll still probably be a Republican state, but we’re unlikely to be the kind of state that passes unconstitutional limits on a woman’s right to choose and the other abominations that we’ve seen here in recent times.

    I guess what I’m saying is give us time. As bad as we are, we’re a work in progress. And do you really want to lose the Royals, the Cardinals, and Harry Truman’s home town?

  30. grumpy realist says:

    @inhumans99: I must admit I veer between hoping we get uterine replicators off the ground (the most elegant solution, IMHO) and having the US go full bat-sh*t out with a Human Life From Conception PLUS all the follow-on effects to pound it into us that an HLFC Amendment would be a really dumb idea.

    Put an HLFC Amendment together with the anti-vaxxers and we could get some really juicy scenarios….

  31. Jen says:

    @Roger: Not sure how long you’ve been a Missouri resident, but before the early 90’s, Democrats controlled the legislature. There were a number of times when Republicans tried to join forces with the pro-life Dems in North County to pass restrictions, and Speaker Griffin was able to stop those efforts, often through procedural moves. After Carnahan was elected Governor (after that disastrous primary between Roy Blunt and Bill Webster), a series of special elections started the move to a Republican House and Senate in MO.

    The state, as far as I can ascertain, has lived just on the edge since then. The House districts are gerrymandered to assure Republican majorities, but the statewide office numbers clearly show a more moderate electorate. Jason Kander, for one–and Claire McCaskill, along with Jay Nixon–there are plenty of Democrats who have won statewide. If Clean Missouri can straighten out those districts, I agree there’s hope. But watch closely for any shenanigans during Special Session if they have one (and I wouldn’t be surprised if they somehow manage to force one). They won’t give up power easily.

  32. Roger says:

    @Jen: @Jen:

    Not sure how long you’ve been a Missouri resident, but before the early 90’s, Democrats controlled the legislature.

    Long enough to remember Warren Hearnes being governor. Missouri is not a southern state, but a fair portion of the population thinks it is and the Southern Strategy worked here almost as well as it did in the real south. A smart Democrat like Claire can still pull out a statewide win if the cards fall right, but the cards do have to fall right.