Abortion Law Sets Life Terms for Women, MDs

Missouri legislators on Thursday enacted one of the toughest anti-abortion laws in the nation--one that never uses the word “abortion.”

Instead, the law talks of “infanticide” as it threatens doctors--and, for the first time, women--with sentences of up to life in prison for causing the death of any “intact child” who is “partially born or born.”

Anti-abortion legislators, who enacted the law by overriding Gov. Mel Carnahan’s May veto, insist the language is narrowly drawn and will apply only to the procedure known as “partial-birth abortion,” in which a living fetus is partly delivered late in pregnancy and then killed in the birth canal.

But opponents fear the law’s fuzzy language could apply even to abortions as early as six weeks into pregnancy, when the fetus begins to resemble a baby and thus could be considered an “intact child.” They worry that, in the worst-case scenario, common early-pregnancy abortion procedures, such as sucking a fetus out of the uterus with a vacuum tube, could be criminalized if a prosecutor determines that the baby was being “born” as it was removed from the womb.

In fact, St. Louis’ Planned Parenthood chapter suspended all abortion services Thursday, saying the law is so vague that doctors might be penalized for performing routine procedures. Officials said the organization planned to challenge the law in court.

Even more alarming to opponents of the bill is the clause that makes a woman subject to criminal prosecution if she “does any act which is a substantial step toward the commission of the offense which results in the death of the living infant.”

The bill’s sponsors say that would apply only if a woman killed a fetus with her own hands as, or after, it emerged from her womb.

But foes worry that an overzealous prosecutor might consider a woman’s decision to seek an abortion--or to pay for it, or to help push the fetus through the birth canal--a “substantial step” toward killing her unborn child. If so, the woman could be charged with a class A felony, punishable by life in prison.

“It turns a woman who’s getting an abortion that’s necessary for her health into a criminal,” said Simon Heller of the Center for Reproductive Law and Policy, which called the Missouri law the most restrictive in the nation. “This is unprecedented in modern American jurisprudence.”

Unprecedented, perhaps. But, Heller believes, a model for laws to come. “This is the next generation of this type of legislation,” he said.

On that point, both sides in the bitter debate agree.

“It’s a new approach,” said Democratic state Sen. Ted House, one of the bill’s co-sponsors. “This is not an abortion bill. It’s not in the abortion section [of the state’s law books]. It’s under the criminal code and it’s about infanticide.”

The shift is not just semantic. By using the term “infanticide” rather than “abortion,” House and his colleagues hope they have crafted a bill that will pass constitutional muster--even though it does not contain an exception for the woman’s health.

Courts repeatedly have held that, although states have the right to regulate abortion, they must make provisions to safeguard the woman’s health. Judges have struck down restrictive abortion laws in at least 19 states that did not exempt women whose health was in danger.

And the Supreme Court has held--in a case originating in Missouri--that states cannot put “unreasonable burdens” on women seeking to terminate pregnancies.

But Missouri lawmakers hope the unusual wording of the Infant Protection Act will help it survive a court challenge on either of these grounds.

First, they argue, their law targets murder, not legitimate abortions. Therefore it does not amount to an undue burden on women with unwanted pregnancies. As for the woman’s health? That’s simply not an issue, they claim. For how can ill health possibly justify the murder of a newborn?

As Democratic state Rep. Bill Luetkenhaus put it: “We don’t have exceptions in our criminal laws saying you can rape or murder someone if you have a health problem.”

To opponents of the law, such reasoning is callous--and, they believe, unconstitutional.

They speak of women who discover late in pregnancy that they need chemotherapy, or a heart transplant, or some other life-saving treatment that cannot be performed while they’re carrying a fetus. For these women, they contend, an abortion may be the only option. And it should be up to a woman and her doctor to decide which technique to use.

The law does say that physicians will not be criminally charged for trying to save a woman’s life--or the life of an unborn child--as long as they use “procedures consistent with the usual and customary standards of medical practice.”

But since partial-birth abortion is equated with infanticide, it would not qualify as normal medical procedure. Abortion rights advocates fear other techniques for terminating a pregnancy also might be ruled illegal.

“A dying woman could be arrested if she sought and obtained an abortion to save her life but her doctor chose the wrong procedure,” Carnahan said in a furious veto message.

Missouri law, the governor pointed out, already prohibits abortions if the fetus is viable--meaning it could survive outside the womb--unless the woman’s life or health is in jeopardy.

In addition, girls under 18 need parental consent before terminating a pregnancy. And all private health insurance policies sold in Missouri must, by law, exclude abortion from their standard coverage packages.

Missouri lawmakers also have passed a “legislative declaration” holding that life begins at conception.

“We’ve got a couple of zealots who want to overturn Roe vs. Wade,” said Democratic state Rep. Joan Bray, who supports abortion rights. “That’s what this is really all about.”

Although passionately contested--thousands of demonstrators marched on the state Capitol as lawmakers began debate Wednesday--the abortion issue in Missouri is not partisan.

In the Senate, 11 of 18 Democrats joined all 16 Republicans in voting to override the governor’s veto. In the House, 50 of 86 Democrats joined all 76 Republicans. It was just the seventh time in state history a veto was overturned.

Before lawmakers voted, Carnahan, a Democrat who plans to run for the U.S. Senate next year, had proposed a compromise bill that would ban partial-birth abortions but permit exceptions for the woman’s health and for pregnancies that resulted from rape or incest. Lawmakers from both sides of the debate, however, have been cool to that idea.