THE ESTABLISHMENT CLAUSE, RU486 & MISSOURI SENATE BILL 793 ARE ON A COLLISION COURSE HEADED TO THE UNITED STATES SUPREME COURT

Missouri Senate Bill 793 is about to become the State's new Abortion Law. Governor Jay Nixon neither signed nor vetoed the bill.  Pursuant to Article III, § 31 of Missouri's Constitution, it becomes law on the Governor's inaction when the General Assembly is not in session. 

Missouri Senate Bill 793 is suspect legislation when viewed from the perspective of Supreme Court case law. The relentless adherence to a theological concept prohibits Missouri's General Assembly from conceiving their error or legislating in appropriate ways to avoid Constitutional conflict.

In a nutshell, abortion is not an unfettered right. A woman' decision to terminate her pregnancy during the previability phase, generally the first trimester, is protected by the Constitution. This protection stems from the Liberty Interest, as described in the Fourteenth Amendment, and resulting restrictions against state action. Another plausible source of this right to privacy, noted by the Supreme Court, is the Ninth Amendment.

Missouri's new law does not even tip its hat to the long line of cases that have upheld a woman's right to privacy with respect to her body; Not even a nod.

In the years since the 1973 decision in Roe v. Wade medical science has moved forward. Available today is emergency contraception called Plan B. Available today is RU486, a medicine called the "abortion pill." The active ingredient in RU486 is mifepristone.

Since RU486 permits a woman to terminate her pregnancy well before viability Missouri realizes that they may not legislate as to mifepristone, right? Wrong.

The problem stems from Missouri's persistent abandonment of science in favor of violating the Establishment Clause of the Constitution. §1.205 Mo.Rev.Stat. makes it law in Missouri that life begins at conception.

§1.205 Mo.Rev.Stat.

Life begins at conception--unborn child, defined--failure to provide prenatal care, no cause of action for.

1. The general assembly of this state finds that:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being;

(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child. 2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state. 3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development. 4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

Missouri Senate Bill 793 contains similar language.

§188.027.1(2) Mo.Rev.Stat. [New]

The physician who is to perform or induce the abortion or a

qualified professional has presented the woman, in person, printed

materials provided by the department, which 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. Such descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development and information on when the unborn child is viable. The printed materials shall prominently display the following statement: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being."

§188.039 Mo.Rev.Stat.

1. For purposes of this section, "medical emergency" means a condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.

2. Except in the case of medical emergency, no person shall perform orinduce an abortion unless at least twenty-four hours prior thereto [a treating physician] the physician who is to perform or induce the abortion or a qualified professional has conferred with the patient and discussed with her the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure and the use of medications, including but not limited to mifepristone, in light of her medical history and medical condition. For an abortion performed or an abortion induced by a drug or drugs, such conference shall take place at least twenty-four hours prior to the writing or communication of the first prescription for such drug or drugs in connection with inducing an abortion. Only one such conference shall be required for each abortion.

3. The patient shall be evaluated by [a treating physician] the physician who is to perform or induce the abortion or a qualified professional during the conference for indicators and contraindicators, risk factors including any physical, psychological, or situational factors which would predispose the patient to or increase the risk of experiencing one or more adverse physical, emotional, or other health reactions to the proposed procedure or drug or drugs in either the short or long term as compared with women who do not possess such risk factors.

4. At the end of the conference, and if the woman chooses to proceed with the abortion, [a treating physician] the physician who is to perform or induce the abortion or a qualified professional shall sign and shall cause the patient to sign a written statement that the woman gave her informed consent freely and without coercion after the physician or qualified professional had discussed with her the indicators and contraindicators, and risk factors, including any physical, psychological, or situational factors. All such executed statements shall be maintained as part of the patient's medical file, subject to the confidentiality laws and rules of this state.

5. The director of the department of health and senior services shalldisseminate a model form that physicians or qualified professionals may use as the written statement required by this section, but any lack or unavailability of such a model form shall not affect the duties of the physician or qualified professional set forth in subsections 2 to 4 of this section.

6. As used in this section, the term "qualified professional" shall
refer to a physician, physician assistant, registered nurse, licensed
practical nurse, psychologist, licensed professional counselor, or
licensed social worker, licensed or registered under chapter 334, 335, or 337, acting under the supervision of the physician performing or inducing the abortion, and acting within the course and scope of his or her authority provided by law. The provisions of this section shall not be construed to in any way expand the authority otherwise provided by law relating to the licensure, registration, or scope of practice of any such qualified professional.

To be effective mifepristone needs to be administered within 49 days of conception. The woman first has to know she has conceived.  She then has to make an appointment with her physician.  Chances are that none of this is covered by insurance, so she will have to have funds available to see the health care provider and pay for the medicine.  Now Missouri wants to add to that equation that she must see the physician, be counseled according to the new law, go home, come back, get the prescription, and then enforce her difficult decision to terminate her pregnancy.  She has seven weeks to get all of this done.  Given the time it takes to notice that she missed her period and the time it takes to budget money for doctor and medicines, Missouri is effectively reducing the window of opportunity for this woman to have a safe non-surgical abortion, at a time when there is 0% probability that the gamete, zygote, or fetus is viable. 

The first question is whether this creates an undue burden on a Fundamental Right.  Where is the State's compelling interest in stopping a woman from making the decision to terminate her preganancy in the first 7 weeks?  Clearly the statute is not narrowly tailored to achieve the State's interest as it applies with equal force to previability cases as well as postviability circumstances. The next question is whether Missouri has violated the Establishment Clause by enforcing the religious dictum of some Christian churches that life begins at conception.

Well qualified plaintiffs need come forward to challenge this part of Missouri's new abortion law. A woman using Plan B must seek declaratory relief asking the court to exempt emergency contraceptives like Plan B from §188.027.1(2). Another woman, a pharmacist, and a physician must ask the court for declaratory relief that §188.027.1(2) places an undue burden on a fundamental right protected by the Fourteenth Amendment. These plaintiffs need to challenge that Missouri Senate Bill 793 as violating the Establishment Clause of the Constitution. Suit must be filed in a Circuit Court in Missouri.

It is time for Missouri to put up evidence proving they have not violated the Establishment Clause. This issue went unresolved in Webster v. Reproductive Health Services, a 1989 case. Associate Justice Stevens provided a lengthy discussion as to why Missouri cannot be permitted to legislate in this manner. Chief Justice Rehnquist's opinion deferred deciding the issue until after Missouri Courts have interpreted §1.205 Mo.Rev.Stat. That is why suit must be brought in a Missouri Circuit Court.

Now it will be more difficult for Missouri to argue that this repetitious language is "precatory, and imposes no substantive restrictions on abortions." Precatory is a legal term of art meaning to make a wish or express a desire. Missouri shows its intent by moving the language from a statute's preamble into the substantive body of the abortion statute.

For his part, Associate Justice Stevens' opened his argument saying:

Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland; Harris v. McRae, or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis. Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some, but by no means all, Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause, [See,] Wallace v. Jaffree.