KANSAS HOUSE OFFERS A HOST OF ABORTION RELATED BILLS DESIGNED TO VIOLATE THE ESTABLISHMENT CLAUSE

My best guess is that if you asked most Americans, or for that matter most Kansans, what the Establishment Clause is that the most common answers would be in the range of "don't know" to "something in the Constitution."  The Establishment Clause is one of two clauses in the First Amendment to the Constitution dealing with religion.  The other is the Free Exercise Clause.

The Establishment Clause says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  The Establishment Clause applies to the States of the Union through the Fourteenth Amendment.   You can effectively read the clause as "Kansas shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" because that's the way a federal judge will read it.

Most folks will begin to remember what Thomas Jefferson and James Madison said in their writings on this topic.  They spoke about a wall of separation between church and state.  Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.

In 1947 the Supreme Court began to weigh in on the Establishment Clause.  Justice Black used the wall of separation analogy.  The case is called Everson v. Board of Education and the issue was whether reimbursing parents for the cost of transporting school children to and from school violated the Establishment Clause where the students were taken back and forth to parochial schools.  Black said paying the parochial schools directly would be a violation, but that reimbursing the parents furthered a legitimate state secular interest in safely transporting children.

Everson tells us, because all nine members of the Supreme Court told us, that the Establishment Clause reaches far beyond a state adopting a particular religion as that state's religion.  This wall separating church and state is not made of granite.  Think of it as an old plaster wall in a house where the foundation has settled.  There are cracks, sometimes there is light or air moving through the wall. 

Consider prayer and religious education for public school children.  A knee jerk bright line approach would say never, not at all, you can't do that.  Two cases show how the answer is sometimes yes and sometimes no.  McCollum v. Board of Education, is a 1948 case finding eight justices more or less agreeing (Justice Black delivered the opinion of the Court, Justice Frankfurter delivered a concurring opinion joined by Justices Jackson, Rutledge, and Burton.  Justice Jackson delivered a separate concurring opinion, and Justice Reed dissented).  In McCollum religious instruction was provided in public schools and the Court said this was a clear violation of the Establishment Clause.

The other side of the coin, off premises religious education, gets a different result in Zorach v. Clauson where public school students were given release time to attend religious instruction in the churches and synagogues of their choice.  In a 6 to 3 decision the Court said that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Justice Douglas, who wrote the majority opinion, argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."  Douglas also said, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." (Emphasis added).

Reading those early cases we see that the discussion of the Establishment Clause tended to focus on children and education.  Today we are on the verge of new analysis of the Establishment Clause, that is because the religiously motivated Anti-Abortion forces in Kansas are proposing to excise the language of science in the state laws regarding abortion and replace that language with the language of religion.  This insidious encroachment effectively removes the objective based scientific standards of gamete, zygote, embryo, and fetus with the all inclusive, straight from the Theology in Opposition to Roe v. Wade, term "unborn child."

Justice Stevens' opinion in Webster v. Reproductive Health Center, in which he concurred in part and dissented in part, gives the Kansas Legislature words to heed.  He said, "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, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). 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. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)." (Emphasis added).

When it comes to abortion and abortion related statutes, the Kansas Legislature is essentially doing a cut and paste job.  They are intent on cutting scientific language and pasting religious dogma, their insidious encroachment of religious text serves no secular purpose thus violating the Establishment Clause.

The offending bills include House Substitute for Senate Bill Number 34, Substitute for Senate Bill Number 36, House Bill Number 2035, House Bill Number 2218, Substitute for House Bill 2242, House Bill 2292, House Bill 2337, and House Bill 2377.  And do not forget House Concurrent Resolution Number 5029.  Although this ill-conceived constitutional amendment does not use the language of "unborn child" it clearly establishes gametes, zygotes, embryos, and fetuses as "persons" thus making another insidious encroachment, science be damned, of religion into law.

It is one thing to be either pro-life or pro-choice.  It is altogether another thing to be an anti-abortion extremist intent on supplanting the law of the land with a theology developed to counter the Supreme Court's opinion in Roe v. Wade.  Here the anti-abortion forces and their minions in the Kansas Legislature are posed to wreck havoc on women and force the State of Kansas into needless and expensive federal litigation. 

Adequate restraints on abortion already exist without taking the religious views of some Christians and forcing them upon the balance of society.  A July 2011 Gallup Poll found 26% of Americans think abortion should be legal under any circumstance, 51% think abortion should be legal under certain circumstances, and a minority view with 20% thinking abortion should be illegal in all circumstances. 

It is time for saner minds and adult thinking to prevail in the Kansas Legislature, it is time to reject these extreme attempts to violate the Establishment Clause with respect to abortion related laws in Kansas.  Will the grown ups please take charge!

KANSAS ANTI-ABORTION HOUSE MEMBERS INTRODUCE AN ILL-CONCEIVED CONSTITUTIONAL AMENDMENT TO ESTABLISH THEIR RELIGIOUS IDEA THAT LIFE BEGINS AT CONCEPTION INTO LAW

Kansas Proposed Constitutional Amendment is A Really Bad Idea

House Concurrent Resolution Number 5029, called the "Human Life Amendment" by its proponents demonstrates how far the anti-abortion crowd will go to establish their religious view of when life begins, and when that life ought to be considered a person.  These extremists are not only challenging Roe v. Wade and a woman's right to make personal and private decisions for herself.  These extremists are also challenging Griswold v. Connecticut.

Connecticut passed a law saying it was illegal to use any drug, medicinal article or instrument for the purpose of preventing conception and that any person who assists, abets, counsels, causes, hires or commands another to commit any offense, under that law, may be prosecuted and punished.  Okay so if you use the pill, especially if you use the pill, you and your doctor, and your doctor's staff, and your pharmacist could all be thrown into jail under a Connecticut style law.

And what is it that the anti-abortion crowd wants written into the Kansas Constitution? They want the first section of the Constitution of Kansas amended to say (and the changes are in italics):

"§ 1. Equal rights. All men are possessed of equal and inalienable

natural rights, among which are life, liberty, and the pursuit of happiness.

Recognizing the authority of the state of Kansas to exercise its police

power and it sovereign right to adopt individual liberties in the

constitution of the state of Kansas more expansive than those conferred by

the constitution of the United States, the state of Kansas shall hereby

guarantee the inalienable rights, equal protection and due process of law

of every human being from the beginning of the biological development of

that human being, including fertilization."

In case you didn't know birth control uses hormones to cause the fertilized egg to detach from the lining of the uterus.  That means that using the pill, among other forms of birth control, will be outlawed in Kansas.

It is ironic that this proposal wants to extend the Constitutional protections of due process of law to gametes, zygotes, embryos, and fetuses.  Why?  Well, as of today the Kansas Constitution doesn't guarantee due process of law to anyone at all.

Justice Blackmun in his dissent in Webster v. Reproductive Health Center, sheds light on the Constitutional infirmity H.C.R. 5029 will eventually face if it is adopted by the state of Kansas.  Blackmun said:

"To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment. Contrary to the theological "finding" of the Missouri Legislature, a woman's constitutionally protected liberty encompasses the right to act on her own belief that -- to paraphrase St. Thomas Aquinas -- until a seed has acquired the powers of sensation and movement, the life of a human being has not yet begun."

That's right, St. Thomas Aquinas, a Doctor of the Church, did not subscribe to this notion that life begins at conception.  That religious notion is new, it is a theology developed after the opinion in Roe v. Wade was rendered.   

Christine O'Donnell, the Separations of Powers Doctrine, and Nino Scalia

With the stubbornness of a child, Christine O'Donnell appears to lack the capacity to apply reason and logic to issues of constitutional law. This week O'Donnell asked her Democratic opponent for Delaware's Senate Seat where in the Constitution can separation of church and state be found.

Ms. O'Donnell's timing couldn't have been worse. The debate was held at the Widener School of Law. When O'Donnell asked Chris Coons the fatal question the audience responded with laughter and dismay.

Christine O'Donnell comes from that silly school of constitutional interpretation that says if those exact specific words are not found in the actual text, then the concept is not constitutionally sound. We heard this before, and given the opportunity Associate Justice Antonin "Nino" Scalia will affirm this error. Scalia is of the school that since the actual word "privacy" is not found in the Constitution there is no right to privacy.

O'Donnell is correct those words are not found in the Constitution. What is found in the Constitution is the First Amendment. The First Amendment provides two important clauses regarding religion. First is the Establishment Clause, which prohibits the federal government from establishing religion. Second is the Free Exercise Clause, which prohibits the government from interfering with a person's free exercise of their religion.

It is generally understood and accepted that the First Amendment's Establishment Clause provides the underpinnings of the doctrine of Separation of Church and State. It is hardly conceivable that the Founding Fathers could have anticipated the actual language which would come to frame the Establishment Clause.

Where then did "Separation of Church and State" come into being? We can thank the good folk of the Danbury, Connecticut Baptist Association for their letter to the newly inaugurated President Thomas Jefferson. These Baptists were concerned about whether they were able to practice their religious beliefs as inalienable rights or as favors granted by the state.

President Jefferson replied, in pertinent part:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." (Emphasis Added).

Jefferson succinctly summarized the tension between the Establishment Clause and the Free Exercise Clause as a wall of separation. If Christine O'Donnell cannot wrap her mind around this important construct of American liberty then she does not have the smarts to provide the independent judgment necessary to be a United States Senator.

Most of the case law dealing with the Establishment Clause is recent. There appears only one older case. In Bradfield v. Roberts, (1899), the federal government funded a hospital for the District of Columbia. The contract for the hospital was granted to a Roman Catholic religious order of the "Sisters of Charity". The Supreme Court, in an opinion by Associate Justice Rufus Peckham, said that there was a secular purpose in establishing the hospital.

The fact that the hospital was being run by nuns was only an incidental factor, the purpose of the hospital was to provide health care, rather than establish Roman Catholicism as our religion. That institution, Providence Hospital, continues in operation today as part of Ascension Health, the nation's largest Catholic and nonprofit health system.

In 1947 the Supreme Court opened the modern line of Establishment Clause cases with Everson v. Board of Education. In that case a New Jersey statute authorized parents of parochial school students to be reimbursed for the expenses of school bus fees. Associate Justice Hugo Black said Jefferson got it correct and that the Establishment Clause was intended to erect a wall of separation between church and state. Neither the state or federal government, said Black, could establish a religion. The New Jersey law was upheld because the law applied to all citizens equally, the secular purpose of the law was to provide the safe transportation of children, and the payments went to the parents of the children instead of to the Church.

A case which did not reach the United States Supreme Court was heard by New Mexico's courts and is known as the Dixon School Case, see Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 (1951). Here the local public schools were abolished by the local school board which in turn recognized the Roman Catholic parochial school system as the public schools. Protestant parents protested to no avail and brought suit. The trial judge ruled the state had violated the separation of church and state doctrine. The New Mexico Supreme Court affirmed, and neither party sought further relief from the federal courts.

The Scalia school of constitutional interpretation wants bright lines and abhors the shadows where the jurist must rely on reasoned analysis to provide consistence, coherence, and clarity to the brick and mortar upon which stare decisis is built by case law. These folks want a test to say all ilk and manner of religion sponsored in any way shape or form by government is wrong, or the doctrine of separation of church and state is a fraud.

There is a test. It was developed by a unanimous Supreme Court in the case of Lemon v. Kurtzman. The Lemon Test has three prongs. 1) There must be a secular legislative purpose supporting the government's actions. 2) The primary effect of the governmental action must to neither advance or inhibit religious activity. 3) No excessive governmental entanglements with religion can result.

Chief Justice Warren Burger wrote the opinion in Lemon v. Kurtzman. In 1968 Pennsylvania passed a law reimbursing religious (typically Roman Catholic) schools for the salaries of teachers who taught secular subject matter, books and supplies for non-religious schools. The net result was that parochial schools were being subsidized by the state in contravention of the Establishment Clause. Without the reimbursements the parochial schools would not be able to provide for these teachers, books, and materials. Associate Justice William Douglas offers a good brief history of recent Establishment Clause cases in his concurrence.

Scalia doesn't like the Lemon Test. He said so in the case of Lambs Chapel and John Stiegerwald v. Center Moriches Union School District. Note: the case was decided on the basis of the First Amendment's Free Speech clause using the same test employed for Separation of State cases. A New York statute permitted local school districts to make their facilities available to community groups after-hours. Moriches Union allowed community groups discussing family issues to use their facilities after-hours. Enter a church armed with the video lectures of noted Christian Psychologist Dr. James Dobson. I am not a huge fan of Dr. Dobson but I am a huge fan of the concept that more speech is better than less speech. Since the facility was available to persons discussing family values from a non-Christian perspective it is impermissible to deny Christians the opportunity to use the facility because of their theological perspective.

The majority opinion was written by Associate Justice Bryon White. Associate Justice Scalia wrote a concurring opinion in which he said:

"As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."

"I cannot join for yet another reason: the Court's statement that the proposed use of the school's facilities is constitutional because (among other things) it would not signal endorsement of religion in general. What a strange notion, that a Constitution which itself gives "religion in general" preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: "Religious advocacy," he writes, "serves the community only in the eyes of its adherents and yields a benefit only to those who already believe." That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 Stat. 52 . Unsurprisingly, then, indifference to "religion in general" is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) ("When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions"); Walz v. Tax Comm'n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference' we have said was never intended" (citations omitted)); ("our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action"); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act)."

Nino Scalia, Christine O'Donnell, and those like them are all for the Free Exercise Clause being rigorously enforced, as it should be. They want to minimize the Establishment Clause into the isolated incident where the Congress says that a particular sect, denomination, religion, or cult is the official religion of these United States. That de minimis view of the Establishment Clause does violence to the tension President Jefferson recognized between the two clauses and reminds me of a Rogers and Hammerstein lyric from the musical Oklahoma.

The song is called All Er Nothin: With me it's all er nuthin'. Is it all er nuthin' with you? It cain't be in between It cain't be now and then" With Scalia and O'Donnell no half and half decision will do.

How simple the world would be if we insisted the tough issues be pretended away.

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.