Current Abortion Regulations in Missouri

Updated December 10, 2000
 

          Under the Supreme Court decisions, Roe v. Wade and Planned Parenthood v. Casey, the general principle of abortion law is that if a doctor is willing to do an abortion, it is legal, whenever in the pregnancy it is performed.  (See the article on this Web site about abortion law in general.)  However, certain regulations of abortion have been permitted over the years, basically because these regulations do not substantially impede access to abortions.  The reader should keep in mind that the regulations may be allowed by the Supreme Court, but they are not in effect unless the state legislature has enacted them.  Certain other regulations have not been allowed by the federal courts.

           The following areas represent situations which are of concern to many people.  The discussion focuses on Missouri law and court decisions which may affect Missouri law.  Please consult a separate article on this Web site concerning federal laws and court decisions on such federal questions as government payment of abortions on military bases, abortion as part of international aid from the U. S. government, and so forth.   Also, please refer to the sites of other state affiliates of the National Right to Life Committee for materials concerning the laws of other states in the Union.
 

I.  Permission, Notice, and Informed Consent

    A.  Permission of Parents of A Minor Before An Abortion Is Performed

        1. Permission and Judicial Bypass.  The permission of at least one parent may be required for a minor to obtain an abortion, except that there must be an alternative allowing the minor to go to court if she does not want to obtain consent or to notify her parents of what is happening.  Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983).  Missouri provides for this in §188.028, RSMo.

        2. No Notice Of Judicial Bypass.  The state cannot require that the woman's parents be notified of the court hearing at which the abortion will be at issue. Ashcroft, 462 U.S. at 491 n.17.
 

    B.  Notice To The Baby's Father Before An Abortion Is Performed

        1. No Permission Of Husband.  The Supreme Court ruled early in the abortion era that the state could not require a husband's permission before a wife has an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

        2. No Notice To Husband.  The Supreme Court has ruled that the state may not  even require simple notice to a husband before a wife has an abortion.  Because of the incidence of spouse abuse, the Court ruled that such a requirement is too substantial a burden on obtaining an abortion to be constitutional. Planned Parenthood v. Casey, 112 S.Ct. 2791, 2826-2832 (1992).

        3. Unmarried Fathers.  Unmarried fathers, of course, have no more standing in regard to the abortion of their children than married fathers have.
 

    C.  Providing Information To Women Before Abortion

        1. Information May Be Required.  The state may require that certain information be offered to women about the development of the unborn baby, the alternatives to abortion, and the health consequences of abortion and carrying the child to term.  Casey, 112 S.Ct. at 2822-2826.

        2. Status of Missouri Statute.  Missouri has attempted to require that some of this information be given to women.  See §188.039. RSMo.  Unfortunately, in 1987, the federal district court in Kansas City enjoined enforcement of the relevant portion of the statute (subsection 2) as instructed by the Supreme Court decisions in Akron v. Akron Center for Reproductive Health, 103 S.Ct. 2481 (1983) and Thornburgh v. American College of Obstetricians and Gynecologists, 106 S.Ct. 2169 (1986).  In 1992, Casey overruled the Thornburgh and Akron cases on this issue.  However, enforcement of subsection 2 of §188.039 remains enjoined by the federal court.
 

    D.  Waiting Period

          The state may require that the abortion may not occur for at least 24 hours after required information has been offered to a woman.  Casey, 112 S.Ct. at 2822-2826.  Missouri does not currently have any law on this.  It attempted to impose a 48-hour waiting period in the 1970's, but the federal courts struck it down.  Planned Parenthood v. Ashcroft, 655 F.2d 848 (8th Cir. 1981).  In the face of the law at the time, the General Assembly replaced the waiting period provision with other provisions when the abortion laws were amended in 1986.
 

II.  Health Regulations

        1. State May Require Physicians.  The state may require that abortions be performed by physicians and not by  obstetrical nurses or other non-doctors.  Roe v. Wade, 410 U.S. 113 (1973); Mazurek v. Armstrong, 117 S. Ct. 1865 (1997).  Missouri does so in §188.020, RSMo.

        2. State May Not Require Hospitals.  The state may not require that all abortions in the second trimester be performed in a hospital.  Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983).  The state may not require that all abortions performed after the gestational age of 16 weeks be performed in a hospital.  Reproductive Health Services v. Webster, 851 F.2d 1071, 1073-74 (8th Cir. 1988).  (This portion of the Court of Appeals' decision was not appealed to the Supreme Court.  Webster v. Reproductive Health Services, 109 S. Ct. 3040, 3044 (1989).)

        3. State May Require Licensed Clinics & Minimum Standards.  The state may require that abortion clinics be licensed and meet minimum reasonable health regulations. Simopoulos v. Virginia, 462 U.S. 506 (1983).  Missouri provides that any clinic which derives more than 50% of its revenue from abortions must be licensed specially as an ambulatory surgical center under §§197.200-.280, RSMo. and 19 CSR 30-30.050-070.  However, only two abortion clinics in Missouri admit to falling within this requirement.

          Other regulations written into the abortion statute itself, ch. 188, RSMo., include (1) written consent to be obtained for the abortion, §188.027; (2) submission of tissue to pathologist to confirm abortion, §188.047; (3) abortionist to complete abortion report for each one performed, §188.051.1; (4) complication report required for all post-abortion care by a physician, §188.051.2; (5) state department of health to collect such reports and to publish annual statistical report on abortions, §188.051.5; and (6) all abortionist-physicians must have surgical privileges at a hospital (not necessarily in the state of Missouri) which offers obstetrical or gynecological care, §188.080.  There are many types of regulations for women's health which remain to be enacted in Missouri.
 

III.  Public Facilities and Funding

    A.  Constitutional Provisions

        1.  Federal Constitution.  The federal constitution does not compel government to fund abortions through Medicaid or any other program.  Harris v. McRae, 448 U.S. 297 (1980); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977).

        2.  Proposed Equal Rights Amendment.  As the law stands now, the right to abortion is not grounded in any language of the U. S. Constitution other than the broad, general language of the Fourteenth Amendment guaranteeing citizens the right not to be deprived of liberty without due process of law.  An Equal Rights Amendment (ERA) would provide another provision of the Constitution on which to ground the right to abortion, one which the courts would probably use to wipe out most, if not all, of the regulations described in this article.  To regulate abortion, it is reasoned, would be to aim a prohibition only at women, because men would not be affected, and this would violate a federal ERA. This type of reasoning has been used by state courts in interpreting state constitutions (see below), and there is no reason to believe that the federal courts would not use the same type of reasoning in respect to an ERA, if ratified by the states as an amendment to the U. S. Constitution.  One of the regulations which would be stricken is prohibiting the use of public money to fund abortions; the governments at federal and state levels would undoubtedly be forced to pay for abortions under the ERA.

        3. State Constitutions.  The courts of some states which have "right to privacy" or "ERA" language in their state constitutions have ruled that the state constitutions therefore require the state to fund abortions.  The New Mexico Supreme Court construed its state ERA in this way.  New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied, 119 S.Ct. 1256 (1999).  Missouri has no such language in its state constitution, but strong efforts are under way to ratify the federal ERA (see above).
 

    B. Federal Funding

         1.  Medicaid.  The current "Hyde Amendment" to the Medicaid appropriation has become much weaker than in the 1980's.  It now provides the following exceptions (HR 3064, §509 (1999)):

(a) (1) if the pregnancy is the result of an act of rape or incest; or

(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.

(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State's or locality's contribution of Medicaid matching funds).

(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State's or locality's contribution of Medicaid matching funds).

        2. Extension Of Hyde Amendment.  In late 1998, the Hyde Amendment was extended to Medicare+ Choice programs, and the above-quoted language covers that program as well as the Medicaid program.

        3. Child Health Insurance Program.  In 1997, the federal government enacted a program of subsidizing state insurance programs for children's health, commonly referred to as "CHIP" programs.  Funding of abortion in such programs was barred, with exceptions for the mother's life, rape, and incest.   Balanced Budget Act of 1997, Pub. L. 105-33, §2105(c)(1), (c)(7), §2110(a)(16), 111 Stat. 558-63, 567-68; codified at 42 U.S.C. §§1397ee(c)(1), (c)(7) and 1397jj(a)(16).
 

     C.  Missouri Funding.

        1.  General Statutes.  In 1986, Missouri enacted abortion statutes which forbade the state to support abortions in these ways under §188.200-.215, RSMo.:

	No state money, employees in the course of their employment, or facilities are  to be used for abortions except abortions performed to save a woman's life.
	No state money, employees in the course of their employment, or facilities are to be used "for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life."

          The first type of restriction, addressed to preventing state assistance for abortions themselves, is constitutional.  Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989).

          The second type of restriction, addressed to "encouraging and counseling," is a dead letter.  In the Reproductive Health Services' lawsuit against enforcement of these statutes, the federal court of appeals found that the second type of restriction was "an unconstitutional infringement of the woman's fourteenth amendment right to choose an abortion after receiving the medical information necessary to exercise the right knowingly and intelligently."   Reproductive Health Services v. Webster, 851 F.2d 1071, 1079 (8th Cir. 1988).  The Attorney General did not appeal the decision as it related to the use of state employees in the course of their employment and state facilities to encourage or counsel a woman to have an abortion.  Webster v. Reproductive Health Services, 109 S. Ct. 3040, 3044 (1989).  In regard to the use of state funds for encouraging and counseling for an abortion, the Attorney General stated that the statute "was not directed at the conduct of any physician or health care provider, private or public," but "is directed solely at those persons responsible for expending public funds."  Id.  In other words, the statute does not govern contractors or state workers in the field; it concerns only the officials who write checks.  In light of this authoritative interpretation, Reproductive Health dropped its claims about the unconstitutionality of the provision from further consideration.  Webster, 109 S. Ct. 3053.  The final result of the Attorney General's interpretation is that §188.205 cannot be enforced against anyone who uses state funds for encouraging or counseling for abortions.

           The state could, if it wished, enact new restrictions on the use of state funds for this purpose, because two years after the Webster decision, the Supreme Court ruled that such restrictions were constitutional.  Rust v. Sullivan, 111 S.Ct. 1759 (1991).  In view of Rust, the state may surely restrict the state facilities and employees from encouraging and counseling for abortions, too.  To date, the General Assembly has not enacted another general set of restrictions on the use of state funds for abortions.

        2.  Refusing To Give Family Planning Contracts To Abortionists.  Once the government funds a health program, the cases indicate that the government cannot disqualify an organization from participating in the program on the ground that the organization advocates or performs abortions.  Babbitt v. Planned Parenthood, 479 U.S. 925 (1986), affirming Planned Parenthood v. Arizona, 789 F.2d 1348 (9th Cir. 1986); Planned Parenthood v. Minnesota, 612 F.2d 359 (8th Cir. 1980); Planned Parenthood v. Kivlahan, Amended Order, (W.D. Mo. June 27, 1996).

           However, a statute which provides that an abortion-performing organization may not receive public family planning money directly, but only through a  subsidiary or affiliate which does not share a corporate name, the same employees, funding sources, or expenses, will survive constitutional scrutiny. Planned Parenthood v. Dempsey, case no. 98-2951 (8th Cir. Feb. 3, 1999).  The General Assembly enacted a funding restriction containing a detailed list of such conditions in 1999 and 2000 (H.B. 1110, §10.710 (2000)), and the restriction is being challenged by Planned Parenthood in federal court as a violation of the federal constitution.  Planned Parenthood v. Dempsey, case no. 99-4145-CV-C-5 (W.D. Mo.).  A state court has already determined that Planned Parenthood is in violation of the 1999 law, and should refund $105,750.00 to the State.  State of Missouri v. Planned Parenthood et al., Judgment of November 16, 1999, case no. CV 199-1010-CC (Cole County Circuit Court).  Planned Parenthood has appealed this decision to the Missouri Supreme Court, case no. 82225, and a ruling by that Court is expected by the end of 2000.
 

IV.  Miscellaneous Regulations

    A.  Conscience Clauses In Missouri Law

        1. Protection From Discrimination In Employment.  No one may be discriminated against in employment or applications for employment because of a refusal to participate in an abortion, unless an employer cannot accommodate an employee's refusal "without undue hardship on the conduct of that particular business or enterprise," or "when participation is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."  §188.105, RSMo.

        2. Protection From Discrimination In Colleges & Hospitals.  No one at a university, college or hospital may be discriminated against for refusal to participate in an abortion, and no fees may be exacted at any school to fund abortion if an individual gives written notice of an objection of conscience or belief.  §188.110, RSMo.

        3. Protections For Physicians, Nurses, Midwives, Hospitals.  No physicians, registered nurses, practical nurses, midwives, or hospitals are required to treat or admit for treatment any woman for the purpose of abortion if contrary to their established policies or their "moral, ethical, or religious beliefs."   §197.032.1, RSMo.

        4. Protection From Discrimination In Public Benefits.  No person or institution may be denied or discriminated against in state public benefits, assistance, or privileges, or in any public or private employment, "on the grounds that they refuse to undergo an abortion, to advise, consent to, assist in or perform an abortion."  §197.032.2, RSMo.

        5. Lawsuits For Violations.  Violation of these rules exposes the violator to liability for damages in a civil action.  §§188.120, 197.032.3, RSMo.  In addition, any violation of §188.105-.110 above results in trebling the damage award, plus the award of attorneys' fees and costs.  §188.120, RSMo.
 

    B.   Eugenics; Utilitarian Abuses Of Unborn Children In Missouri Law

        1. No Referrals For Abortions By Genetic Clinics.  No genetic diagnostic and counseling clinic may refer for an abortion unless a physician certifies that the life of the mother is endangered.  §191.320, RSMo.

        2. No Experimentation On Unborn Children.  No experimentation may be done on an unborn child or a child aborted alive, except as necessary to protect or preserve the life and health of the child.  §188.037, RSMo.

        3. No Abortions To Obtain Fetal Tissue.  No abortion may be performed if the abortionist knows that the child was conceived for the purpose of providing organs or tissue for transplantation and that the abortion is intended to utilize the organs or tissue.  §188.036.1, RSMo.   No one may utilize fetal organs or tissue for transplantation if the person knows that the abortion was procured for this purpose.  §188.036.2, RSMo.

        4. No Inducements To Abort For Fetal Tissue.  No one shall offer any inducement to a woman or prospective father of an unborn child to conceive the child for use of its organs or tissue or to have an abortion for this purpose.  §188.036.3 & .4, RSMo.  No one may purchase or sell fetal tissue or organs resulting from an abortion.  §188.036.5, RSMo.
 

    C.   Insurance And Medical Plan Coverage

        Missouri law provides that all insurance policies, plans, and contracts require a separate rider and premium in order to cover abortions.  §376.805, RSMo.
 

V.    Status Of Unborn Outside Abortion Context

    A.  Missouri Statute

        1. Unborn Are Persons With Protectable Interests.  Missouri law states that to the extent the U. S. Constitution and interpretation thereof by the courts allow, an unborn child is a person from the moment of conception with protectable interests in life, health and well-being.  Furthermore, Missouri law declares that parents have protectable interests in the lives, health and well-being of their unborn children.  §1.205, RSMo.

        2. Supreme Court Declined To Review Statute.  Because there was no showing that the language of Missouri's statute impinged upon the right to abortion, the Supreme Court determined there was no need to consider its constitutionality in Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989).
 

    B.  Court Interpretations

        1. Deaths Of Unborn Children May Impose Civil & Criminal Liability. On the strength of the statute, the Missouri state courts have declared that the killing of an unborn child, outside of the abortion context, may constitute a criminal homicide. State v. Knapp, 843 S.W.2d 345 (Mo. banc 1992); State v. Holcomb, 956 S.W.2d 286 (Mo. App. 1997).  In addition, the death of an unborn child, non-viable or viable, may give rise to a cause of action for wrongful death which may be pursued by the parents.  Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo. banc 1995).