If the fight over abortion in the U.S. Supreme Court is indeed finished, it may be about to begin in the Missouri Supreme Court.
A draft majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked to Politico on May 2. The draft, written by Justice Samuel A. Alito Jr., details a decision that would overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, leaving abortion law up to individual states.
If the court’s final opinion follows suit, it would trigger a change in state law that would make Missouri’s already strict abortion laws even stricter. But it also could prompt an effort to recognize a right to abortion within the Missouri Constitution.
“It’s just an unresolved issue” said Tony Rothert, legal director of the American Civil Liberties Union of Missouri. “Just because the new members of the U.S. Supreme Court have changed the understanding of what the federal constitution protects doesn’t mean the Missouri Supreme Court is bound by that holding because we can provide greater protection.”
A clear roadmap for such a suit would be the 2019 ruling by the Kansas Supreme Court in Hodes & Nauser v. Schmidt, which recognized a “right of personal autonomy” that included the right for a woman to decide whether to continue a pregnancy. That right, the court’s majority held, flowed from Section 1 of the Kansas Bill of Rights: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
That language, which echoes the 14th Amendment of the U.S. Constitution, has a corollary in the Missouri Constitution. Article I, Section 2 states in part that “all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry.”
Rothert said that language could allow the Missouri Supreme Court to follow the lead of Kansas and other states.
“If anything, given how natural law was understood the last time the constitution was ratified, I think it makes the argument stronger in Missouri, that the rights of the constitution are for living human beings, not for nonviable fetuses and zygotes and blastocysts,” he said.
But interpretations of other constitutional provisions aren’t binding in Missouri, and some lawyers argue that Missouri’s high court would be reluctant to follow neighboring Kansas’ lead.
“I’m just very skeptical, given the political situation, the makeup of the court and even the way the court has interpreted the state constitution, that they would ever find a right to abortion in it,” said John Reeves, an appellate attorney in St. Louis. “And even if they did, given how red of a state this is, it would be easier for that decision to be limited via a constitutional amendment.”
Republican state Rep. Mary Elizabeth Coleman, an attorney and a staunch opponent of abortion, agreed.
“I think that’s something that we need to be watching as a pro-life state, but I don’t think it is likely based on a plain reading of the Missouri Constitution,” she said.
The Missouri Supreme Court has never said whether abortion is a protected right under the state constitution. It discussed it in Planned Parenthood of Kansas and Mid-Missouri Inc. v. Nixon, a 2007 case on the constitutionality of a state law that created a private cause of action against anyone who aids or assists a minor in obtaining an abortion without the consent of her parents or a court.
The court’s unsigned, unanimous opinion gave a narrow construction of the law that prevented it from infringing on free speech or targeting out-of-state conduct. The ruling does say that states may not impose an undue burden on abortion, but the authority for that statement was the 1992 Casey ruling, not the Missouri Constitution or state court rulings.
Current law in Missouri allows abortion up to 22 weeks into the gestational period of a pregnancy. House Bill 126, which passed in 2019, would drop that limit to eight weeks. But that law has been enjoined while the 8th U.S. Circuit Court of Appeals considers its constitutionality.
Under a trigger provision of HB 126, a U.S. Supreme Court decision that strikes down Roe would ban all abortions except in cases of medical emergency. People who perform abortions would have their professional license suspended or revoked and be guilty of a Class B felony.
“If this thing happens, then abortions become criminal in the state of Missouri,” said Frank O. Bowman, a law professor at the University of Missouri.
Alito’s draft opinion lists Missouri as one of 30 states that had criminalized abortion to some degree prior to the release of Roe in 1973. In 1825, Missouri convicted people who helped administer an abortion with a maximum imprisonment of seven years and a max fine of $3,000 — the equivalent of more than $87,000 today.
The post-Roe trigger requires action by the attorney general, the governor or the General Assembly. In a statement, Missouri Attorney General Eric Schmitt said that he is prepared to file an opinion that would release those provisions from limbo. Coleman similarly has urged lawmakers to pass a resolution before the session ends on May 13.
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