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.” Pursuant
to Roe, this statute was declared unconstitutional and
permanently enjoined in an unreported decision of a three-judge
federal court. The statute
was later repealed, and
would not be revived by a decision overruling Roe v. Wade. Abortions
could be performed for any reason before viability, and for
virtually any reason after viability.
Mo. Ann. Stat. § 559.100 (Vernon 1969).
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 had 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).
Laws, 658, 662-63.
has enacted a statute stating:
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.
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having been repealed), this expression of legislative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).
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.