Six minutes after the U.S. Supreme Court released its decision striking down Roe v. Wade, Missouri Attorney General Eric Schmitt posted a photo of himself signing a legal opinion to trigger the state’s abortion ban.
The lightning-fast action by Schmitt, a Republican candidate for U.S. Senate, instantly drew national attention and allowed him to claim credit for ending abortion in Missouri as he fights to win a crowded primary race.
But many of the consequences of that moment — for women, for doctors and for Schmitt — are still uncertain.
Missouri now forbids abortion in nearly all circumstances, including in cases of incest and rape, under a 2019 law that was designed to go into effect when Roe v. Wade was overturned. Only medical emergencies are grounds to end a pregnancy.
That single exception opens the door to greater scrutiny by law enforcement of any abortion a doctor says was required because of a medical emergency. Missouri law gives both the state attorney general and local prosecutors authority to prosecute abortion-related crimes.
Just five weeks before the August primary vote when Schmitt will need to win over fervently anti-abortion Republican voters, the Missouri attorney general is now empowered to investigate potential violations of the ban.
“My Office has been fighting to uphold the sanctity of life since I became attorney general, culminating in today’s momentous court ruling and attorney general opinion,” Schmitt said in a statement on Friday. “I will continue the fight to protect all life, born and unborn.”
Schmitt didn’t elaborate on what shape his continued fight would take.
Six Republicans are running competitive campaigns for U.S. Senate. Schmitt, a former state senator and Missouri treasurer, has consistently polled among the top three candidates, along with former Gov. Eric Greitens and U.S. Rep. Vicky Hartzler. Greitens has touted an anti-abortion special session he called as governor, while Hartzler has a long relationship with social conservatives going back more than a decade.
Some local prosecutors, including Jackson County Prosecutor Jean Peters Baker, a past chair of the Missouri Democratic Party, and St. Louis County Prosecuting Attorney Wesley Bell, also a Democrat, have said they won’t bring abortion cases.
Schmitt, on the other hand, has committed to enforcing abortion laws.
“In the last couple of years, I wouldn’t be at all surprised to see an ambitious attorney general running in a Republican primary second-guessing decisions and wanting to investigate all of these,” Chuck Hatfield, a Jefferson City-based attorney who has represented Planned Parenthood, said, referring to abortions.
State Sen. Mike Cierpiot, a Lee’s Summit Republican, said the 2019 law “clearly is targeted at doctors that perform abortions.”
“I think that’s where probably their efforts will be as we go forward,” Cierpiot said of the Missouri Attorney General’s Office. “It’s kind of early so we’ll see how this all shakes out. But I think that’s where they’ll be.”
Missouri collects abortion information
Missouri already collects a significant amount of information about every abortion performed by a physician that could provide a starting point for Schmitt or other prosecutors.
After each abortion, doctors must sign a Report of Induced Termination of Pregnancy that is sent to the Missouri Department of Health and Senior Services (DHSS). A blank report posted to the DHSS website doesn’t include a space for the patient’s name, but calls for a host of other information, including the patient’s race, education level, and past pregnancy and abortion history.
The form also includes space for the date of the patient’s last normal menses and a clinical estimation of the gestational age. If the abortion was performed on a viable fetus, the signature of a concurring physician is required as well as a signed statement from the physician certifying the medical necessity of the procedure.
Missouri’s abortion ban prohibits the prosecution of women who seek or obtain abortions for the crime of conspiracy. Peters Baker told NPR on Monday she believes the law still allows women to be prosecuted for self-inducing an abortion, though she acknowledged disagreement on that point.
“I think she’s thrust into some grade of homicide or manslaughter,” Peters Baker said.
Michael Mansur, a spokesman for Peters Baker, told The Star that a lot remains unknown about how abortion could potentially be prosecuted.
“There’s so much more for us to figure out,” Mansur said, adding that the language in the law raises “big questions” about whether women are actually shielded.
During a legal fight with Planned Parenthood in 2019, DHSS revealed it was able to find patients with complicated abortions by creating a spreadsheet that included the fetus’ gestational age and the last normal date of Planned Parenthood patient’s periods.
Schmitt spokesman Chris Nuelle didn’t answer a specific question about whether the Missouri Attorney General’s Office currently has access to Induced Termination of Pregnancy reports and, if so, whether the office would review the reports going forward.
“We will dedicate the resources necessary to enforce Missouri’s abortion laws,” Nuelle said in a statement. “We have worked cooperatively with DHSS to enforce abortion laws in the past, and expect that cooperation to continue. We will review and consider whatever referrals are made by DHSS to our office.”
DHSS spokeswoman Lisa Cox didn’t respond to questions about under what circumstances information on the forms is shared with law enforcement and prosecutors.
On its website, DHSS says the information on the form is “confidential and is only used for statistical purposes.” The website doesn’t address whether the reports could be subject to a subpoena or warrant.
What’s a medical emergency?
Republican Gov. Mike Parson, who signed Missouri’s “trigger” ban on abortion into law in 2019, told reporters after an event in Kansas City on Monday the state was ready for the ban.
“This has been coming for a long time,” Parson said when asked what enforcement of the ban should look like in Missouri and what role he wants the attorney general to play. “I think the most important thing of the decision of the Supreme Court was to put it back to the States.”
“In Missouri, we’re not going to do it but other states can,” Parson said. “I’ve been pretty open about where I stand on that ever since I’ve been governor, and I want to do everything I can to protect a young child.”
Missouri’s abortion ban defines medical emergency as a condition that, using reasonable medical judgment, “so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman” or a condition in which delaying an abortion “will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
The definition is similar to the one in the Mississippi abortion law upheld last week by the U.S. Supreme Court, and allows abortions when when pregnancy will create a “serious risk of substantial and irreversible impairment of a major bodily function.”
Before the case was argued, the American College of Obstetricians and Gynecologists (ACOG) argued in a brief that the definition was too narrow and will prevent abortions for women with medical complications that “while posing grave risks to their health, are not urgent or extreme enough” to qualify for an exemption.
The brief listed lupus, diabetes and pulmonary hypertension among the conditions that may not fall within the exemption.
“These oppressive laws will force many people to face the known risks associated with continuing a pregnancy, including potential pregnancy-related complications and worsening of existing health conditions, as well as the morbidity and mortality associated with childbirth,” Iffath A. Hoskins, president of ACOG, said in a statement.
Dave Dillon, a spokesman for the Missouri Hospital Association, said very few if any Missouri hospitals offered elective abortions. Some hospitals may end pregnancies in an emergency when there is an immediate risk to life or health, he said.
“It would be expected that many of these cases would meet the exceptions included in Missouri’s new laws,” Dillon said.
Abortion lawsuits possible, too
Even if Schmitt doesn’t immediately investigate or prosecute physicians, he may still turn to a frequently-used tactic: litigation.
Some St. Louis officials are proposing to use federal COVID-19 aid to provide logistical support for access to abortion, including transportation and child care, St. Louis Public Radio reported. Federal law prohibits public dollars from funding abortion and the aid wouldn’t directly pay for the procedure.
St. Louis was home to Missouri’s sole remaining abortion clinic. Abortion remains legal in Illinois, however, and Planned Parenthood operates a clinic in nearby Fairview Heights. Abortion is also legal in Kansas and offered at a Planned Parenthood clinic in Overland Park
Samuel Lee, a lobbyist for Campaign Life Missouri, said Schmitt should sue to block the St. Louis plan if it’s approved. He argues it would violate state law.
But Democrats, and even some Republican critics, have criticized Schmitt for filing publicity-seeking lawsuits. Schmitt filed scores of lawsuits over the past year, most aimed at school districts and local governments, attacking mask mandates and vaccine requirements. The vast majority were dismissed after health rules were dropped.
To some critics, the signing of the legal opinion within minutes of the U.S. Supreme Court decision only underscored their view that his primary goal is attention.
“I think he’s trying to grasp at anything he can after losing lawsuit after lawsuit and fighting against simple requirements like masks that save our children and keep them safe in schools,” said state Rep. Patty Lewis, a Kansas City Democrat.
The 2019 Missouri law that includes the abortion ban allows it to be triggered by either a legal opinion from the attorney general or a proclamation of the governor. Schmitt announced he had signed the legal opinion roughly 45 minutes before Parson’s proclamation landed in email inboxes.
James Harris, a Jefferson City-based Republican consultant with longtime ties to Parson, predicted more voters would give credit to the governor for signing the 2019 law. Still, the attorney general’s quick action may help him with some voters.
“I think it helps the attorney general because he can show acting on something that mattered and not hesitating,” Harris said. “But there’s a lot of other issues that voters will be sifting through over the next five weeks to try to figure out who do I feel comfortable voting for?”
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(The Star’s Cortlynn Stark contributed reporting.)
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