Abortion Ban

BAN ON ABORTION PROCEDURE

Missouri bans a safe abortion procedure.  Mo. Ann. Stat. § 565.300 (Enacted 1999).

Missouri enacted a law which bans a safe, medically appropriate abortion procedure.  When the law was enacted, a lower court enjoined its enforcement.  However, in the wake of the Supreme Court's decision in Gonzales v. Carhart, the lower court found the law constitutional and enforceable and lifted the injunction.  Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 429 F.3d 803 (8th Cir. 2005), vacated by 127 S.Ct. 1610, remanded to No. 04-2909 (8th Cir. May 29, 2007).

Missouri's ban makes the performance of any abortion procedure that falls within a broad definition a felony, unless the act is performed by a physician using procedures consistent with the usual and customary standards of medical practice to preserve the woman's life.  Mo. Ann. Stat. § 565.300 (Enacted 1999).  A lower state court held that Missouri's ban does not apply to a licensed physician's performance of:  (1) abortion prior to the time that a fetal heartbeat is detectable or abortion at any time when the fetus has no detectable heartbeat; (2) suction curettage abortion; (3) vacuum aspiration abortion; (4) hysterectomy abortion; (5) induction abortion; (6) hysterotomy abortion; and (7) dismemberment or nonintact dilation and evacuation abortion.  State v. Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc., No. 004-00008 (Mo. Cir. Ct. Dec. 5, 2000).  Additionally, a state appellate court found that the ban could not be interpreted to contain an exception to protect a woman's health.  State v. Reprod.Health Servs. of Planned Parenthood of the St. Louis Region, Inc., 97 S.W.3d 54 (Mo. Ct. App. 2002).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after a treating physician has conferred with the patient and discussed with her the "indicators and contra-indicators, 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."  Mo. Rev. Stat. § 188.039 (Enacted 1979; Last Amended 2003).

This law has been challenged in two cases.  The state supreme court decided that both the waiting period and the biased-counseling requirements are constitutional and enforceable.  Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, No. SC86768 (Mo. Feb. 28, 2006).  A federal district court had issued a preliminary injunction enjoining enforcement of the biased-counseling portion of the law.  The injunction expired 10 days after the state court decision.  Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, No. 03-4210-CV-C-SOW (W.D. Mo. Dec. 1, 2005) (order granting preliminary injunction).

In addition, an earlier law that has since been repealed provided that a woman may not obtain an abortion until after the attending physician informs her of the particular risks associated with the procedure, alternatives to abortion, and whether she is pregnant.  Mo. Ann. Stat. § 188.039 (Enacted 1979; Repealed 2003).  A court held that this provision is unconstitutional.  Reprod. Health Servs. v. Webster, 662 F. Supp. 407 (W.D. Mo. 1987).

Counseling Ban/Gag Rule

No public funds may be used to provide abortion counseling unless necessary to preserve the woman's life.  Mo. Ann. Stat. § 188.205 (Enacted 1986).

No funds for insurance and services for uninsured children may be used to counsel or refer for abortion unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest.  No person or organization that counsels or refers for abortion, unless necessary to preserve the woman's life or the pregnancy is the result of rape or incest, may receive funds under the Children's Health Insurance Program.  Mo. Ann. Stat. § 208.631 (Enacted 1998; Last Amended 2002), § 208.655 (Enacted 1998).

No funds expended under the Missouri Alternatives to Abortions Services program or the Missouri Alternatives to Abortion Public Awareness program may be used to provide, assist in, or refer for abortion services.  None of these funds shall be granted to organizations or affiliates of organizations that provide, assist in, or refer for abortion services.  Mo. Rev. Stat. §§ 188.325, .335 (Enacted 2007).

In addition, no genetic diagnostic evaluations, treatment, and counseling services provided by the department of health through contracts with tertiary genetic centers may refer for abortion, unless necessary to preserve a woman's life.  Mo. Ann. Stat. § 191.320 (Enacted 1985).

No public funds appropriated to the Life Sciences Research Trust Fund may be used to counsel or refer for abortion services unless necessary to preserve a woman's life.  Mo. Ann. Stat. §§ 196.1100, .1127 (Enacted 2003).

Insurance Prohibition for Abortion

Health insurance policies must exclude coverage for abortions for any reason except to preserve the woman's life.  Coverage may only be obtained through an optional rider for which an additional premium is paid.  Mo. Ann. Stat. § 376.805 (Enacted 1983).  A court upheld the constitutionality of this law in Coe v. Melahn, 958 F.2d 223 (8th Cir. 1992).

Other Anti-Choice Law

Missouri has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.

"It is the intention of the general assembly of the state of Missouri to grant the right to life to all humans, born and unborn, and to regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes."  Mo. Ann. Stat. § 188.010 (Enacted 1974; Last Amended 1986).

"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; . . . [and,] 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 . . . ."  Mo. Ann. Stat. § 1.205 (Enacted 1986).

Public Facilities and Employees Restriction

A public facility may not be used for performing, assisting in, or counseling a woman to have an abortion unless the procedure is necessary to preserve her life.  Mo. Ann. Stat. § 188.215 (Enacted 1986).

The U.S. Supreme Court upheld this restriction under the federal constitution.  Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

A public employee may not, within the scope of his or her employment, perform or assist in an abortion unless the procedure is necessary to preserve the woman's life.  Mo. Ann. Stat. § 188.210 (Enacted 1986).

The U.S. Supreme Court upheld this restriction under the federal constitution.  Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Missouri allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Individuals, physicians, nurses, midwives, or hospitals.

What does the refusal clause allow?  No physician, nurse, midwife, or hospital may be required to admit or treat a woman for the purpose of an abortion if admission or treatment is contrary to moral, ethical, or religious beliefs or established policy.  Refusal to treat or admit may not be a basis for a cause of action.

No person or institution may be denied a public benefit or discriminated against in employment on the basis of refusal to advise, assist in, or perform an abortion.

No applicant, student, teacher, or school employee who objects in writing on grounds of conscience or belief may be required to pay any school fees that would in whole or part fund an abortion.

An employer, college, university, or hospital may not discriminate against an individual because of a refusal to perform, assist in, refer for, promote, procure, or counsel a woman to have an abortion not necessary to preserve her life, except where an employer demonstrates an inability to reasonably accommodate the refusal to participate without undue hardship or where participation in abortion is a bona fide occupational qualification reasonably necessary to normal operations.

An individual injured by prohibited discrimination may bring a civil action for treble damages, costs, and attorneys' fees.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Mo. Ann. Stat. §§ 188.100 to .120 (Enacted 1986), 197.032 (Enacted 1973).

INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE

Although Missouri law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.

To whom does the refusal clause apply?  Employers for whom use or provision of contraception conflicts with their moral, ethical, or religious beliefs or tenets, as well as insurers owned, operated, or substantially controlled by an entity operated according to moral, ethical, or religious tenets that are contrary to the use or provision of contraceptives.

What does the refusal clause allow?  An employer or insurer exercising a moral, ethical, or religious refusal may require or issue plans that exclude coverage for contraception.

Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women?  Yes.  By applying to employers and insurers with any moral, ethical, or religious belief or tenet that conflicts with use or provision of contraceptives, and by failing to define any of the relevant terminology, the law's refusal clause is tremendously overbroad, inappropriately including a wide range of entities that perform non-religious functions in the public sphere.

Does the law require that the persons affected by the refusal be notified?  Yes.  A health insurance plan must provide clear and conspicuous written notice on the enrollment form or any accompanying materials indicating: (1) whether the plan covers contraceptives; (2) that an enrollee may obtain a policy excluding contraceptive coverage if it conflicts with his or her moral, ethical, or religious beliefs; and (3) that an enrollee who is a member of a plan that does not cover contraceptives has the right to purchase such coverage.

Are there circumstances under which a refusal clause may not be exercised?  Yes.  A refusal clause may not be used to exclude coverage for prescription contraceptive drugs or devices ordered by a health care provider for reasons other than contraception.

Does the law provide a mechanism for women to obtain contraceptive coverage if their employer and/or insurer exercises a refusal clause?  Yes, in some circumstances.  Unless exercising a refusal clause, an insurer must allow enrollees in a health insurance plan that excludes coverage for contraception to purchase a health benefit plan that includes coverage for contraception.

May an individual obtain a health insurance policy that excludes contraceptive coverage?  Yes.  An individual who is a member of a group health insurance plan and who states that the use or provision of contraceptives is contrary to his or her moral, ethical, or religious beliefs may require an individual plan that excludes coverage for contraception.

Does the law offer any other additional protections?  Yes.  An insurer may not disclose the names of enrollees who either refuse or purchase plans that cover contraception.  Enrollees shall not be discriminated against because they refused or purchased plans providing contraceptive coverage.

Mo. Ann. Stat. § 376.1199 (Enacted 2001).

Restrictions on Low-Income Women's Access to Abortion

Missouri prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the physician certifies that the woman's life is endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, or the pregnancy is the result of rape or incest.  Mo. Dep't of Soc. Servs., Division of Medical Servs., Mo. Medicaid Provider Manual: Physician, § 13.40.I (Sept. 1, 1998) at http://www.dss.mo.gov/dms/providers.htm; Mo. Dep't of Soc. Servs., Division of Medical Servs., Certification of Medical Necessity for Abortion (Aug. 1999), at http://www.dss.mo.gov/mhd/providers/index.htm.

Invalid and enjoined statutes prohibit public funds for abortion unless the procedure is necessary to preserve the woman's life.  Mo. Ann. Stat. §§ 188.205 (Enacted 1986), 208.152(1)(11) (Original Statute Enacted 1967; Relevant Provision Enacted 1973; Last Amended 1981; Renumbered 2005).

Invalid and enjoined statutes prohibit public funds for abortion unless the procedure is necessary to preserve the woman's life.  Mo. Ann. Stat. §§ 188.205 (Enacted 1986), 208.152(1)(11) (Original Statute Enacted 1967; Relevant Provision Enacted 1973; Last Amended 1981; Renumbered 2005).

A court held that this restriction conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest, as well as life endangerment.  The court declared that the state may not enforce the statute, so long as it accepts federal Medicaid funds.  Stangler v. Shalala, No. 94-4221-CV-C-5 (W.D. Mo. Dec. 28, 1994).

The Missouri Legislature enacted a bill that prohibits any funds distributed through the Department of Health for the Division of Maternal, Child and Family Health from being used to perform or refer for abortion services; specifically, organizations that receive state family planning funds are prohibited from performing, assisting, or referring a patient for abortion services.  H.B. 10, 94th Gen. Assem., Reg. Sess. (Mo. 2007) (Enacted 2007).  To the extent that this law prohibits funding for abortion in cases of life endangerment, rape, or incest, it is in conflict with federal law.

Restrictions on Young Women's Access to Abortion

Missouri law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  No.  However, any person alleged to violate any provision of this law because of a medical emergency may use it as an affirmative defense in any criminal, civil, or administrative proceeding.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is granted majority rights for the purpose of consenting to the abortion or that an abortion is in her best interests.

Are there other significant requirements under the law?  Yes.  Under a statute enacted in 2005, anyone who "cause[s], aid[s], or assist[s]" a young woman to have an abortion without parental consent may be liable to the young woman and her parents.  This liability applies even if the young woman complies with all laws in the state where she receives abortion care.  The Missouri Supreme Court determined in May 2007 that the terms "aid or assist" as used in this statute do not apply to speech or expressive conduct, and thus do not prohibit the provision of abortion information or counseling. Parenthood of Kansas & Mid-Missouri v. Nixon, 220 S.W.3d 732 (Mo. 2007).

Has a court considered the constitutionality of this law?  Yes.  In September 2005, a federal district court issued a temporary restraining order that prohibits the enforcement of the statute enacted in 2005.  Springfield Healthcare Center v. Nixon, No. 05-4296-CV-C-NKL (W.D. Mo. Sept. 16, 2005).  In October 2005, the court dismissed the case, and dissolved the temporary restraining order after the clinic abruptly closed.  Springfield Healthcare Center v. Nixon, No. 05-4296-CV-C-NKL (W.D. Mo. Oct. 25, 2005).  In November 2005, a state court issued an injunction to prohibit the enforcement of this statute.  The injunction also prohibited the state from investigating or acting on the provisions of the statute.  Although the state court determined that the law could be interpreted in such a way that would make it constitutional, the court lacked the confidence to make this determination conclusively.  Therefore, the state court issued the injunction, which remained in place until May 2007, when the Missouri Supreme Court determined that when narrowly construed, the statute is not unconstitutional.  Planned Parenthood of Kansas & Mid-Missouri v. Nixon, No. 0516-CV25949 (Mo. Cir. Ct. Jackson County Nov. 17, 2005); Parenthood of Kansas & Mid-Missouri v. Nixon, 220  S.W.3d 732 (Mo. 2007).

Other information about the law:  The U.S. Supreme Court held that a previous version of this law was constitutional.  Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983).

Mo. Ann. Stat. §§ 188.028 (Enacted 1979; Last Amended 1986), .015, .075 (Enacted 1974; Last Amended 2007), .250 (Enacted 2005).

Targeted Regulation of Abortion Providers (TRAP)

Missouri imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Missouri has such regulations, including:

Abortion providers must be located within 30 miles of a hospital, or face criminal penalties.  No exception is provided for rural areas.  Mo. Stat. Ann. § 188.080 (Original Statute Enacted 1974; Relevant Provision Enacted 2005).  A court issued a temporary restraining order prohibiting the state from enforcing this provision, but this order was dissolved after the clinic bringing suit shut down.  Springfield Healthcare Center v. Nixon, No. 05-4296-CV-C-NKL (W.D. Mo. Sept. 16, 2005) (issuing temporary restraining order), Springfield Healthcare Center v. Nixon, No. 05-4296-CV-C-NKL (W.D. Mo. Oct. 25, 2005) (dissolving temporary restraining order).

Missouri regulations require all providers to be licensed as an "abortion facility" if 51% or more of their patients receive abortions, or if 51% or more of their revenues are "from abortions or procedures related to abortions."  Mo. Code Regs. Ann. tit. 19, §30-30.050(1)(A), (B), .050(2)(A). Facilities that were built after the rule was put into effect in 1987 must comply with dozens of administrative, professional qualification, patient and employee testing, and physical plant requirements.  Mo. Ann. Stat. §§ 188.060 (Enacted 1974; Last Amended 1979), 188.080 (Enacted 1974; Last Amended 2005); Mo. Code Regs. Ann. tit. 19, §§ 30-30.060, 30-30.070.  These include particularly costly and onerous construction and design requirements, such as that procedure rooms must be at least 12 feet long and wide with ceilings at least nine feet high and doors at least 44 inches wide, corridors must be at least six feet wide, and separate counseling rooms are required and must be at least ten feet long and wide.  Mo. Code Regs. Ann. tit. 19, §§ 30-30.070(2)(B), .070(2)(C), .070(2)(M), .070(2)(Z).  Facilities that existed at the time the regulations were passed had to comply with other physical requirements that were slightly less cumbersome than those for facilities built after 1987.  Mo. Code Regs. Ann. tit. 19, § 30-30.070(3).  

Recently, Missouri passed another law that would require most, if not all, health care facilities that provide abortion care in Missouri to become licensed "ambulatory surgical centers," regardless of how long the facility has been operating.  Mo. Ann. Stat. § 197.200.  Becoming an ambulatory surgical center is a highly burdensome and unnecessary process that would force providers to make even more expensive and time consuming changes to their facilities than are already required.  This would likely result in abortion providers being shut down and patients being forced to travel out of the state to receive abortion care.  On September 24, 2007, a court granted a preliminary injunction to stop the state of Missouri from immediately enforcing the law.  Planned Parenthood of Kansas and Mid-Missouri Inc. v. Jane Drummond, Jay Nixon, Daniel Knight, and James Kanatzar, No. 07-4164-CV-C-ODS (W.D. Mo. filed Sept. 24, 2007) (issuing preliminary injunction).  The court ordered abortion providers and the state to work together to modify the clinic regulations and return to the court in the event of an impasse.  Subsequently, a lawsuit was filed in a Missouri state court asking to exclude providers from the law who only prescribe the medical abortion pill (commonly known as RU 486 or mifepristone).  Planned Parenthood of Kansas and Mid-Missouri Inc. v. Jane Drummond, Jeremiah W. Nixon, and James F. Kanatzar, No. 0716-CV30805 (Mo. Cir. Ct. filed Oct. 22, 2007).  A decision has not been rendered in that case.  

Missouri has an unconstitutional and unenforceable statute that requires all abortions after 16 weeks of pregnancy or later be performed in a hospital.  Mo. Ann. Stat. § 188.025 (Enacted 1974; Last Amended 1986).  The statute was declared unconstitutional in Reprod. Health Servs. v. Webster, 851 F.2d 1071 (8th Cir. 1988), aff'd in part and rev'd in part on other grounds, 492 U.S. 490 (1989).

An earlier version of the requirement mandating hospitalization for all abortions after the 12th week of pregnancy was also declared unconstitutional.  Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476 (1983).

Restrictions on Who May Perform Abortions

Missouri prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state to practice medicine in the state and having surgical privileges at a hospital that offers obstetrical or gynecological care may perform an abortion.  Mo. Ann. Stat. § 188.015(5) (Enacted 1974), Mo. Ann. Stat. § 188.020 (Enacted 1974; Last Amended 1979), Mo. Ann. Stat. § 188.080 (Enacted 1974; Last Amended 2005).

A physician's assistant may not perform an abortion.  Mo. Ann. Stat. § 334.735(10) (Original Statute Enacted 1989; Relevant Provision Enacted 1998).

A court held that the provision requiring physicians performing abortions to have surgical privileges at specified hospitals is constitutional.  Women's Health Ctr. of West County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989).