Jackson County Prosecutor Jean Peters Baker is seeking to strike down Missouri’s criminal penalties for abortion, adding to an already intense legal confrontation playing out in St. Louis that could result in a judge overturning the state’s near-total ban.
The Democratic prosecutor, whose jurisdiction includes much of Kansas City, last month filed a petition in St. Louis Circuit Court arguing the criminal penalties violate the Missouri Constitution’s guarantees of equal protection. Baker’s filing came in an ongoing lawsuit brought by progressive faith leaders challenging the abortion ban on religious freedom grounds.
The lawsuit, filed in January, is turning into a bitter fight over the role religion played in the crafting of Missouri’s ban and the meaning of the law’s sole exception – for medical emergencies – that critics say is far too vague and leaves doctors second-guessing when they can legally perform an abortion. It comes amid a nationwide wave of similar lawsuits deploying religious freedom arguments to challenge state-level bans.
As part of the legal fight, lawyers for Republican Gov. Mike Parson, Missouri Attorney General Andrew Bailey and other officials have suggested in court that a woman unable to obtain an abortion through the medical emergency exception could seek a court order to get one. And in court documents, attorneys for the faith leaders and Bailey’s office have even fought over the effectiveness of condoms.
Baker’s filing, which has drawn little public attention, is the newest front in the battle by Democrats, abortion rights advocates and others to reverse the ban. After the U.S. Supreme Court struck down the federal right to the procedure last summer, Missouri became the first state to impose a ban, implementing it within minutes of the decision.
Separately from the lawsuit, supporters of abortion access are expected to try to use an initiative petition to place a state constitutional amendment on the ballot next year, but the effort is currently held up by Bailey, a staunch abortion opponent who is refusing to sign off on cost estimates for the petitions. The Missouri Supreme Court is set to hear arguments this week in a case seeking to force Bailey to complete the paperwork.
But for opponents of the ban, the best hope of restoring abortion access in Missouri in the short term remains a court order blocking officials from enforcing it.
Pursuing criminal prosecutions against doctors “who provide ethical, sound care in the best interests of their patients as recommended and approved by state and national standards does not fit within the concept of justice,” Amanda Langenheim, an attorney in the Office of the Jackson County Counselor representing Baker, wrote in the June 13 filing.
“To do so would not only deprive the would-be physician defendant of their fundamental right to enjoy the gains of their own industry, but it would also operate to the disadvantage of a suspect class – patients receiving reproductive healthcare (women),” Langenheim wrote.
Missouri law makes knowingly performing or inducing an illegal abortion a class B felony, which can carry prison sentences of between five and 15 years. Doctors who perform illegal abortions can also lose their professional licenses.
Even before the U.S. Supreme Court overturned Roe v. Wade, Baker all but guaranteed her office won’t bring abortion-related charges, saying she would use her prosecutorial discretion “to limit the erosion of reproductive rights.”
When the religious leaders – 14 clergy from seven faith traditions – sued to block the ban, they named Baker and other county prosecutors as defendants, in addition to Parson, Bailey and state officials. While most of the prosecutors successfully sought to have themselves dismissed from the case, Baker hasn’t tried to have herself removed, allowing her to continue participating in the lawsuit.
Baker contends in the filing that because of the way Missouri’s abortion law was written, several separate, contradictory abortion restrictions are in effect simultaneously. When Parson in 2019 signed an anti-abortion bill that included the trigger that would eventually ban the procedure after the U.S. Supreme Court’s 2022 decision, other provisions allowed the state to restrict abortion after various stages of pregnancy depending on what the court ruled.
St. Louis Circuit Court Judge Jason Sengheiser hasn’t taken up Baker’s petition, and neither Bailey nor any of the other defendants filed court documents responding to it.
A spokesman for Baker didn’t respond to a request for comment last week. A spokeswoman for Bailey also didn’t respond to a request for comment.
Samuel Lee, a lobbyist for the anti-abortion group Campaign Life Missouri, questioned whether it’s appropriate for Baker to challenge the law.
“Can or should a prosecutor even challenge a lawfully enacted state statute?” Lee said.
Several lawsuits challenge abortion bans
On June 30, Sengheiser dismissed several claims made by the faith leaders seeking to toss out abortion restrictions in Missouri law, such as the state’s 72-hour waiting period. But the judge allowed the core challenge against the ban to move forward.
The decision doesn’t necessarily indicate whether the lawsuit will succeed, but lawyers for the faith leaders portrayed it as a victory.
“We applaud the court’s decision allowing our challenges to Missouri’s harmful and unconstitutional total abortion ban and restrictions on medication abortion to proceed,” Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center, said in a statement.
“But we are disappointed that the court stopped short of hearing our challenge to the many other medically unnecessary restrictions which made abortion inaccessible to so many long before Roe was overturned,” Banker said. “So while this decision is certainly a victory that we celebrate, it is a reminder that it will take all of us, and every tool we have, to meaningfully restore abortion access in Missouri.”
The lawsuit is one of about a dozen nationally challenging abortion bans or restrictions on religious freedom grounds. The emerging strategy is in some ways an inversion of conventional wisdom that religious energy in the abortion debate has often been on the side of abortion opponents.
While the Catholic Church and many evangelical Christian churches are vocally anti-abortion, some mainline Protestant denominations either support abortion rights or don’t take firm stands against it. Clergy from Baptist, Episcopalian, Orthodox Judaism, United Church of Christ, Reform Judaism, Unitarian Universalism and United Methodist houses of worship are among those bringing the Missouri lawsuit.
Stephanie Toti, senior counsel and project director at The Lawyering Project, which works to support abortion access and reproductive health care, said some of the lawsuits have come in states where lawmakers over the years have sought to strengthen religious freedom, including by passing what have been called “religious freedom restoration acts.”
While Missouri has such a law, the clergy lawsuit is centered on alleged violations of the state constitution’s prohibitions on the establishment of religious preferences. They allege Missouri law, by stating that life begins at conception, imposes “an inherently religious view of when life begins.”
“I think a lot of these current lawsuits are an effort to reclaim religious liberty for abortion supporters and to highlight the point that the right to abortion is inextricably intertwined with the right to religious freedom,” Toti said. “This is essentially when life begins, when personhood begins – is really a matter of religious belief and therefore should be protected.”
Bailey has rejected those arguments. In a court filing, Missouri Deputy Solicitor General Maria Lanahan wrote that the clergy raise “off-the-wall theories” to strike down the abortion ban.
Lanahan argued laws banning and regulating abortion don’t violate the state constitution’s prohibition on establishing religion. Lawmakers are free to make religious arguments, she contends.
“The idea that legislation is invalid simply because it is motivated by religious views proves far too much,” Lanahan wrote.
Dispute over condoms
The Missouri faith leaders’ lawsuit includes one plaintiff, the Rev. Molly Housh Gordon of the Unitarian Universalist Church in Columbia, who because of a high likelihood of severe complications would seek an abortion if she ever became unintentionally pregnant, according to court documents.
The abortion ban’s medical emergency exception is defined as a condition, based on reasonable medical judgment, that so complicates a pregnancy that it requires an immediate abortion to avert the death of the pregnant woman. It also includes a condition for which a delay in obtaining an abortion would create a serious risk of “substantial and irreversible physical impairment of a major bodily function” of the pregnant woman.
Housh Gordon fears that if she became pregnant, she would be unable to obtain the health care in Missouri necessary to preserve her own life, health and well-being, the clergy’s legal complaint says. This would “run counter to her religious beliefs about the sacredness of her bodily autonomy and agency.”
Lawyers representing the state of Missouri have pushed back aggressively on Housh Gordon’s arguments, to the point that they raised the possibility the reverend could ask a judge for permission to have an abortion if she became pregnant.
“While State Respondents suggested during oral argument that Housh Gordon’s proper remedy if she becomes pregnant and decides to seek an abortion and is unable to obtain one is to file an emergency temporary restraining order to have a court rule that she is entitled to an abortion under her circumstances,” Sengheiser wrote in his June 30 decision. “However, the Court finds that is not a realistic remedy in the face of a medical emergency.”
A spokeswoman for Bailey didn’t respond to questions about who made the remark or whether Sengheiser’s description accurately reflected the comment.
Housh Gordon’s situation has also led to a dispute over condom effectiveness that has played out in court filings. Because of medical conditions and side effects, Housh Gordon is unable to use IUDs or hormonal birth control and relies on condoms.
The faith leaders’ legal complaint says that for every 100 women who rely on condoms for a year, 18 will become pregnant. It cites a webpage from the Centers for Disease Control and Prevention that no longer appeared online when The Star attempted to access it Friday.
Still, the statistic appears roughly correct. According to the Cleveland Clinic, while condoms are 98% effective at preventing pregnancy when used perfectly, in typical use they are actually about 87% effective.
“Gordon claims that she uses condoms and that condoms are 18% ineffective in preventing pregnancy in the general population (which uses them both correctly and incorrectly),” Lanahan wrote.
“But she does not allege that she uses them incorrectly, nor is any incorrect use traceable to the State Defendants. The relevant ineffectiveness rate when used correctly is 2%. Regardless, neither a 2% chance of future pregnancy nor an 18% chance of future pregnancy is sufficient to establish a ‘current’ controversy.”
Sengheiser’s decision on whether to dismiss the case didn’t directly address the dispute, but he allowed Housh Gordon’s claims to proceed. It’s unclear what will happen next in court; no hearings are currently scheduled.
“My impression is that the judge threaded the needle,” Lee said. “Again, it’s a motion to dismiss and that’s not going to be granted unless there’s basically nothing to support it.”
