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Missouri The principal pre-Roe statute prohibited performance of an abortion on a woman unless the procedure was “necessary to preserve her life or that of an unborn child.”1 Pursuant to Roe, this statute was declared unconstitutional and permanently enjoined in an unreported decision of a three-judge federal court.2 The statute was later repealed,3 and would not be revived by a decision overruling Roe v. Wade.4 Abortions could be performed for any reason before viability, and for virtually any reason after viability.5 1 Mo. Ann. Stat. § 559.100 (Vernon 1969). 2 See Rodgers v. Danforth, Civ. No. 18360-2 (W.D. Mo. May 18, 1973), aff’d 414 U.S. 1035 (1973). In its original decision, the three-judge court dismissed the challenge to the law on abstention grounds. See Rodgers v. Danforth, Civ. No. 18360-2 (W.D. Mo. Sep. 10, 1970). That judgment was vacated and the cause was remanded for further consideration in light of Roe v. Wade. See Rodgers v. Danforth, 410 U.S. 949 (1973). In another pre-Roe decision, the Missouri Supreme Court rejected a challenge to the statute. See Rodgers v. Danforth, 486 S.W.2d 258 (Mo. 1972), vacated and remanded, 410 U.S. 949 (1973). 3 1977 Mo. Laws, 658, 662-63. 4 Missouri has enacted a statute stating:
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 (West 2004). In the absence of new legislation criminalizing abortion (the pre-Roe statutes having been repealed), this expression of legislative intent would not, by its own terms, make abortion illegal. It contains no operative provisions and authorizes no punishment. Conduct is not criminal in Missouri unless a statute defines the particular conduct as criminal. See Mo. Ann. Stat. § 556.026 (West 1999). 5 Because of its undefined health exception, Missouri’s post-viability statute, see Mo. Ann. Stat. § 188.030 (West 2004), would not effectively prohibit post-viability abortions. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds. |
May be reprinted without permission but with attribution to the Life Legal Defense Fund.