Abortion in Missouri: A look at key claims in the 'decline to sign' effort

Missouri Right to Life also claims that the proposed amendment would deny women the right to sue abortion providers for malpractice.

Bell, with Missouri Stands with Women, said concerns related to malpractice stem from language in the proposed amendment that would prohibit the punishment or prosecution of those who assist others with reproductive health care.

That language says: "No person shall be penalized, prosecuted, or otherwise subjected to adverse action based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion. Nor shall any person assisting a person in exercising their right to reproductive freedom with that person's consent be penalized, prosecuted, or otherwise subjected to adverse action for doing so."

"It would shield those performing abortions and other providers from any liability for any sort of prenatal care," Bell said.

Schafer said the idea that patients can't sue for malpractice under the amendment is a "fallacy."

"Our amendment allows for people who are seeking abortions or get reproductive freedom care to not be criminalized or penalized, and people who are supporting those individuals in seeking that care to not be penalized," Schafer said.

"I think it's a little ambiguous," Bertolini, the health care attorney, said of the language in this section. "If people are concerned that this would mean there would not be recourse for, say, professional malpractice by a health care provider, it may require a court's interpretation. But there is a compelling government interest in allowing those kinds of laws to protect individuals from bad actors and from negligent health care providers."

David Cohen, a constitutional law professor at Drexel University and abortion and reproductive rights scholar, rejected the idea that the amendment would bar malpractice claims.

"I just can't imagine that that would be used to upend the entire basis of tort law, which is that there can be malpractice for when you act negligently," Cohen said. "There is no way this would be interpreted by any court to upend malpractice and tort law."

He said the anti-abortion movement's claims about malpractice and elimination of health regulation are arguments seen in other states, calling it "run-of-the-mill fearmongering."

—Fetal viability

Under the amendment, health care providers would be able to perform abortions after fetal viability — the point at which a fetus can survive outside the womb — if a health care professional determines the procedure is needed to protect the life or health of the mother.

While the Legislature could enact regulations for post-viability abortions, it could not bar the procedure when "in the good faith judgment of a treating health care professional (it) is needed to protect the life or physical or mental health of the pregnant person."

"These abortions are incredibly rare," said Cohen, the Drexel constitutional law professor. "Not many providers are skilled and trained to do them. And when they do do them, it's because someone's life or health is really seriously at risk. And so, this constitutional language would allow a provider to make that judgment, which none of them take lightly."

Dr. Sarah Horvath, an OB-GYN and complex family planning physician in Pennsylvania, said the "overwhelming majority" of people who have an abortion do so very early in pregnancy. And for those who access abortion care later in pregnancy, it's in the context of unique life and medical circumstances.

"People do not access abortion care lightly," said Horvath, a member of the American College of Obstetricians and Gynecologists. "They have thought about their decision long before they get to an abortion care clinic, long before they're actually having the procedure or taking the pills. This is a well-considered decision for folks. This isn't something that's happening on a whim."

—Parental consent

Parental involvement laws define if and how minors must get consent from parents before an abortion.

According to one Missouri Right to Life flyer, the constitutional amendment "would allow abortions to be performed on pregnant minors without notice to or consent from the minor's parents."

In the decades following Roe, "the majority of states enacted parental involvement laws, and these were permitted even though there was a federal constitutional right to abortion," said Rachel Wechsler, a law professor at the University of Missouri.

This is largely because the Supreme Court has recognized that parents have a fundamental constitutional right to the care, custody and control of their minor children, Wechsler said. But an exception must also be available for cases such as incest or abuse. Known as a judicial bypass procedure, the process for these exceptions allows a court to decide if a minor should be permitted to have an abortion without parental consent or notification.

"If Missouri passes this constitutional amendment, it can also enforce the existing parental involvement law on the books, which requires the consent of one parent, notification of the other parent, and provides for a judicial bypass procedure," Wechsler said.