Partial Birth Infanticide, Missouri

Updated November 27, 2000.

        The U. S. Supreme Court considered one type of statutory ban on partial birth abortions in the case, Stenberg v. Carhart, no. 99-830  (June 28, 2000).  The Nebraska law at issue was struck down for two reasons.  First, it did not have a health exception.  But a health exception is a false issue in connection with infanticides, as these procedures truly are.  The AMA has written that there is no valid medical reason to perform partial-birth abortions, and the procedures present health dangers to the woman.  Furthermore, under the law, a health exception swallows the other rules that the Supreme Court has promulgated in the abortion field.  To the extent that the U. S. Supreme Court adheres to a requirement for a health exception, the Court will not allow the people, through legislators, to ban the partial-birth killing procedure.

        Second, in Stenberg, the Court acquiesced in the interpretation by lower federal courts of the scope of the Nebraska statute.  They held that the Nebraska statute covered more than the intended crime and outlawed "normal" abortions, especially dilatation and evacuation (D & E) abortions most commonly used in the third month of gestation.  By this type of interpretation of the Nebraska law, the Court found that it created an "undue burden" on abortions by outlawing the most common methods.  Thus, it was unconstitutional under the standard announced in the 1992 decision, Planned Parenthood v. Casey.  This ground is susceptible to being overcome by more precise legislative drafting.

        Missouri has attempted to provide a more tightly written statute by addressing the crime as infanticide.  Missouri's statute (H.B. 427) was enacted on September 16, 1999, when the General Assembly overrode the Governor's veto after a grueling contest which ran through the summer.  (To overcome the Governor's heavy-handed political pressure exerted on legislators, a rally of pro-life citizens on September 15 saw the largest crowd ever gathered on the Capitol steps in Jefferson City.  In the afternoon, they formed a prayer chain which completely encircled the Capitol building.)  The essence of H.B. 427 is contained in its third section, as follows:  "A person is guilty of the crime of infanticide if such person causes the death of a living infant with the purpose to cause said death by an overt act performed when the infant is partially born or born."  The key terms of that sentence, "living infant" and "partially born," were defined in other portions of the statute.  A section making the statute explicitly inapplicable to other abortion procedures was included.

        Planned Parenthood filed its attack on this bill in the U. S. District Court in Kansas City the day after the Governor's veto was overridden.  Reproductive Health Services of Planned Parenthood v. Nixon, case no. 99-4231-CV-C (W.D. Mo.)  Early in 2000, the Special Assistant Attorney General, Jordan Cherrick, filed a lawsuit against Planned Parenthood in a state court to have the bill declared lawful and to define the scope of the outlawed acts. State of Missouri v. Reproductive Health Services of Planned Parenthood & Crist, case no. 004-00008 (Circuit Court of St. Louis City).  The purpose was to obtain a state-court decision declaring that the Infant Protection Act does not affect "normal" abortions, but only the killing of infants when they are almost, but not quite, completely out of the woman's body.  Soon after the filing of the state court action, the federal judge in Kansas City tried to stop the state proceedings, but his temporary injunction was reversed by the federal court of appeals, and he was ordered to abate his proceedings until the state trials were completed.  Reproductive Health Services v. Nixon, Order, case no. 00-1310WMKC (8th Circuit, March 23, 2000).

        On December 5, 2000, the state circuit court issued a mixed ruling.  The court construed the statute to imply a health exception within a broader clause in the statute allowing those charged with infanticide to have all defenses otherwise available by law.  Without such an implied health exception, the judge held, the statute would be unconstitutional under the rulings of the U. S. Supreme Court.  The state court also ruled that only the abortion procedure known as "D & X abortion" was prohibited by the statute, which takes away one of the main arguments of the abortionists.  It is likely that an appeal will be filed, perhaps by both sides, and that the state case will reach the Missouri Supreme Court in due course.  After the state supreme court rules, the federal court litigation will resume to determine the federal constitutional questions.

        If the circuit court's interpretation of H.B. 427 is upheld by the Missouri Supreme Court, then it is likely that no language which attempts to ban partial birth abortions will ever be upheld.  Roe v. Wade and Planned Parenthood v. Casey will turn out to mean, as Stenberg v. Carhart indicated, that even these unspeakable crimes are protected under the United States Constitution.