Missouri Senate Approves Post-Viability Abortion Ban

State   Steven Ertelt   Apr 1, 2011   |   12:30PM    Jefferson City, MO

Following the lead of the state House, which approved a similar measure two weeks ago, the state Senate on Wednesday gave initial approval to a bill that would ban abortions after the point of viability.

The legislation, which still needs a final vote, requires abortion practitioners to determine if the unborn child is viable and if the baby is determined to not be viable the abortion practitioner would have to issue a report to the state health department indicating so and explaining why.

However, the Senate made a few last-minute changes before taking an overwhelming voice vote for the legislation. The bill requires two doctors not affiliated with the abortion practitioner to certify a danger to the life of the mother before an abortion can be done.

Senate President Pro Tem Robert Mayer, a Republican who sponsors the bill, said ensuring two doctors certify the abortion is necessary to ensure the law is not abused an abortions are done simply because the abortion practitioner believes so.

“You’re dealing here with an unborn human being someone that doesn’t have the ability to communicate and understand what’s going on,” Mayer said.

Sen. Jolie Justus, a Democrat, and pro-abortion groups like NARAL led opposition to the bill before the debate and vote, though Justus admitted 63 abortions were done on babies at or after 20 weeks of pregnancy in Missouri last year. She was able to get an amendment added to make it so the two doctors would not be ruled out if they are affiliated with the same hospital.

Justus also got another amendment approved. The bill originally changed the Missouri definition of viability to include human life that can be “sustained” outside of the womb with or without life support as opposed to life that can be “continued indefinitely” — language submitted by the pro-life group Americans United for Life. The amendment changes the definition back to what state law currently uses.

“There were some concerns about the definition of viability and so we struck out the provision in the senate committee substitute and struck out the new definition of viability or viable and just returned to the existing definition,” Mayer said, according to AP. “The bill still accomplishes what it set out to do, which is to make doctors determine viability of a child and cut back on the number of abortions that are performed on viable unborn children.”

Under the proposed law, no abortion could be performed after viability unless the mother’s life was endangered by a “physical disorder, physical illness, or physical injury,” or when continuation of the pregnancy would create a serious risk of “substantial and irreversible physical impairment of a major bodily function.”

No physician could proceed with performing an abortion on a viable unborn child unless they obtained the agreement of a second physician that the abortion was necessary to preserve the life of the mother, or that continuation of the pregnancy would pose severe health risks to the pregnant woman.  The second physician would have to be familiar with accepted obstetrical and neonatal standards of practice, and could not have any legal or financial affiliation or relationship with the doctor performing the abortion.

Both physicians would be required to document the reasons that the late-term abortion is medically necessary.   They would then be required to report those reasons to the State Board of Registration for the Healing Arts, the state agency that licenses and regulates physicians.  A doctor found guilty of  performing an illegal late-term abortion would be imprisoned for a term of not less than one year, fined not less than $10,000, and would have his license to practice medicine revoked.   A hospital or ambulatory surgical center that knowingly allows a late-term abortion to be performed on its premises would be subject to suspension or revocation of its license.

The Missouri Family Policy Council says one of the reasons for the bill is to narrow considerably the ambiguous “health of the mother” exception for post-viability abortions currently contained in Missouri statutes.  As a result of the Doe v. Bolton case handed down by the U.S. Supreme Court in 1973 on the same day as the Roe v. Wade decision, the health of the mother provision has authorized abortion on demand throughout all nine months of pregnancy.  The Supreme Court interpreted “health of the mother” to include all factors, including claims of mental and emotional distress, or an inability or unwillingness to raise a child.

In more recent decisions, however, the Supreme Court has reiterated that government has an important and legitimate interest in the life of the unborn child which becomes “compelling” at viability, the group says. In the Planned Parenthood v. Casey decision in 1992, the Supreme Court stated that “viability…is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman.”  The High Court went further to say that “a woman who fails to act before viability has consented to the state’s intervention on behalf of the developing child.”

In the Carhart v. Gonzalez decision of 2007 that upheld state bans on partial-birth abortion, the Supreme Court acknowledged that its previous precedents had “undervalued the state’s interest in potential life.”  The Court flatly stated that laws restricting late-term abortions would be constitutional so long as they did not subject women to “significant health risks.”