Missouri Encyclopedia of Abortion Arguments

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This article was started by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 23:55, 4 June 2019 (UTC) Interaction from other writers will be distinguished from my writing with lines above and below.

Introduction - Summary

Is it possible that any state has thought of any way to restrain abortions, that was not included in Missouri’s [1]HB216, signed into law May 24, 2019?

Except for Rhode Island in 1973 and Alabama May 15 of this year, that is. Those states went all the way, outlawing virtually all abortions, with serious criminal penalties, and justified penalties with strong personhood statements, placing before courts the single issue: are those living humans in there?

But Missouri came close to doing that too, pointing out that detection of a heartbeat is already legally recognized evidence of a living human being, suggesting that by six weeks, at least, babies become “recognizably human”, as Roe defined “persons”. The Missouri law states:

(6) In medicine, a special emphasis is placed on the heartbeat. The heartbeat is a discernible sign of life at every stage of human existence. During the fifth week of gestational age, an unborn child's heart begins to beat and blood flow begins during the sixth week; ... (10) The Supreme Court in Roe discussed “the difficult question of when life begins” and wrote: “[p]hysicians and their scientific colleagues have regarded[quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable’, that is, potentially able to live outside the mother's womb, albeit with artificial aid”. Roe, 410 U.S. at 160. Today, however, physicians’ and scientists’ interests on life in the womb also focus on other markers of development in the unborn child, including, but not limited to, presence of a heartbeat, brain development, a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, [survivability of a 3rd month preemie] and the ability to experience pain;

Missouri didn’t go all the way. Missouri didn’t mention the legally recognizable evidence that babies from 0-5 weeks are also constitutionally protected: the consensus of every court-recognized fact finder that has taken a position: dozens of juries, thousands of expert witnesses in court trials, 38 states, Congress, and several judges (documented in my book, “How States can Outlaw Abortion in a Way that Survives Courts”).

Missouri left untouched what it alleged were the majority of abortions: its restrictions do “not amount to a substantial obstacle to a large fraction of women” getting an abortion. This leaves unchallenged the Supreme Court’s rulings that no state law can place a “substantial obstacle” in the way of a woman’s “fundamental right” to abortion. In other words, the courts are not asked to address any evidence or argument that unborn babies are humans, which Roe said would require all states to outlaw all abortions.

Redefining “Viability”

(10) The Supreme Court in Roe discussed “the difficult question of when life begins” and wrote: “[p]hysicians and their scientific colleagues have regarded[quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable’, that is, potentially able to live outside the mother's womb, albeit with artificial aid”. Roe, 410 U.S. at 160. Today, however, physicians’ and scientists’ interests on life in the womb also focus on other markers of development in the unborn child, including, but not limited to, presence of a heartbeat, brain development, a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, [survivability of a 3rd month preemie] and the ability to experience pain;

[Comment: This is a clever justification for redefining Roe’s “viability” which I had not previously heard of or considered. I wonder who originated this approach?

[Roe had ruled that states may restrict abortion only after “viability”, defined, as “potentially able to live outside the mother's womb, albeit with artificial aid”. Until now there hadn’t been much hope of breaking that barrier, even though 4-month preemies have survived.

[But this approach builds on the factual basis for Roe’s viability standard: Roe noted that viability in 1973, which was roughly the same time as quickening in 1873, was when court-recognized fact finders applied serious penalties for abortion. But why? Missouri points out the reason: that is when our great great great grandparents were sure there was human life in the womb. Luke 1 says it was at the end of the second trimester that John the Baptist leaped in Elizabeth’s womb.

[Roe glossed over that little detail. Without directly saying so, Missouri exposes that omission and corrects it. What our ancestors cared about wasn’t a certain time frame, but when they could recognize human life. Since Roe cared about what they cared about, we should too; but now we know there is life from minute one.

[However, Missouri’s Findings of Facts do not apply this principle to outlawing all abortions, but all those after a heartbeat is heard – since a detectable heartbeat is already established in law as evidence of human life.]

Missouri's Law (Penalties)

The penalty, combined with the finding of facts that babies are people, will force judges to address the reality that babies, being people, have a constitutionally protected right to life, before which there can be no "substantial obstacle", such as legal abortion. This penalty makes it impossible for the defense lawyer to argue that this is the "least restrictive (of the "constitutional right" to an abortion) means of achieving a compelling government interest".

188.017

1. This section shall be known and may be cited as the "Right to Life of

2 the Unborn Child Act".

3 2. Notwithstanding any other provision of law to the contrary, no abortion shall be

4 performed or induced upon a woman, except in cases of medical emergency. Any person

5 who knowingly performs or induces an abortion of an unborn child in violation of this

6 subsection shall be guilty of a class B felony, as well as subject to suspension or revocation

7 of his or her professional license by his or her professional licensing board. A woman upon

8 whom an abortion is performed or induced in violation of this subsection shall not be

9 prosecuted for a conspiracy to violate the provisions of this subsection.

188.027

Comment: The following section puts abortionists back to work provided they thoroughly explain to mothers who they are murdering! How can 188.027 put abortionists back to work in the law right after the law, 188.017, that retires them all except for "medical emergencies"? Another section of the new law makes each section "severable", meaning whatever judges don't specifically strike down will still be law; so apparently the expectation is that 188.017 will be struck down, leaving 188.027. But will judges, seeing that 188.017 never for one minute banned all abortions, ignore the "that's a baby" issue raised by it, and consider only whether 188.027 avoids placing a "substantial obstacle" before a mother's constitutional right to murder her very own baby? That's what I would be tempted to do, if I were a God-hating, life-hating judge.

1. Except in [the case] cases of medical emergency, no abortion shall be

2 performed or induced on a woman without her voluntary and informed consent, given freely and

3 without coercion. Consent to an abortion is voluntary and informed and given freely and without

4 coercion if, and only if, at least seventy-two hours prior to the abortion:

The rest of this section specifies that the abortionist has to inform the patient in person, and write down what he said, giving medically accurate information about the abortion method, the risks taking into account the patient's medical history, a promise to be available for questions afterward, location of the hospital where the abortionists has "clinical privileges", the age and development of the child,

Missouri's Finding of Facts, with my comments interleaved

The Finding of Facts below, added to Missouri's laws May 24, 2019 total 3,997 words. They do NOT include evidence that ALL unborn babies have a constitutionally protected right to life from minute one, which rules out ANY right to abortion; rather, they include evidence that babies are "persons" when their heartbeats are detectable, when they can feel pain, etc. By contrast, the Finding of Facts I propose, in my book "How States can Outlaw Abortion in a Way that Survives Courts", (available on Amazon), totals 163 words, but they include ONLY evidence that ALL babies are equally protected. My book also proposes a supplementary Simple Resolution with more detail, but even that is "only" 1,758 words.

188.010. In recognition that Almighty God is the author of life , that all men and  women are "endowed by their Creator with certain unalienable Rights, that among these  are Life", and that article I, section 2 of the Constitution of Missouri provides that all  persons have a natural right to life, it is the intention of the general assembly of the state of  Missouri to [grant]:

(1) Defend the right to life [to] of all humans, born and unborn[, and to];

(2) Declare that the state and all of its political subdivisions are a "sanctuary of life" that protects pregnant women and their unborn children; and

(3) Regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes.

Comment: the preceding 3 paragraphs were in Missouri law since 1988, and were the subject of the 1989 Webster ruling. Because they included no penalties, and because #3 promised to stay out of the way of Roe v. Wade, the Supreme Court said there was no restriction of abortion for the Court to review. The case was not "ripe". The section below is what was signed into law May 24, 2019. The 3,597 word count includes both sections.

188.026.

1. This section and sections 188.056, 188.057, and 188.058 shall be known and may be cited as the "Missouri Stands for the Unborn Act".

2. In Roe v. Wade, 410 U.S. 113 (1973), certain information about the development of the unborn child, human pregnancy, and the effects of abortion was either not part of the record or was not available at the time. Since 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life and the effects of abortion on women. The general assembly of this state finds:

(1) At conception, a new genetically distinct human being is formed;

(2) The fact that the life of an individual human being begins at conception has long been recognized in Missouri law: "[T]he child is, in truth, alive from the moment of conception". State v. Emerich, 13 Mo. App. 492, 495 (1883), affirmed, 87 Mo. 110 (1885).

Under section 1.205, the general assembly has recognized that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and well-being;

(3) The first prohibition of abortion in Missouri was enacted in 1825. Since then, the repeal and reenactment of prohibitions of abortion have made distinctions with respect to penalties for performing or inducing abortion on the basis of “quickening”; however, the unborn child was still protected from conception onward;

[Comment: Much before 1900, people knew a baby was growing but could only speculate whether the baby was alive. Thus “quickening” was the evidence they accepted that the baby was alive. Before “quickening”, they weren’t positive the mother was even pregnant; which explains why penalties for abortion were less before quickening: they weren’t sure the abortion killed a living human being, and they weren’t even sure there was a human being to be killed.]

(4) In ruling that Missouri's prohibition on abortion was constitutional in 1972, the Missouri supreme court accepted as a stipulation of the parties that "'[i]nfant Doe, Intervenor Defendant in this case, and all other unborn children have all the qualities and attributes of adult human persons differing only in age or maturity. Medically, human life is a continuum from conception to death.'" Rodgers v. Danforth, 486 S.W.2d 258, 259 (1972);

(5) In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Supreme Court, while considering the “preamble” that set forth “findings” in section 1.205, stated: “We think the extent to which the preamble's language might be used to interpret other state statutes or regulations is something that only the courts of Missouri can definitively decide. State law has offered protections to unborn children in tort and probate law”. Id. at 506. Since Webster, Missouri courts have construed section 1.205 and have consistently found that an unborn child is a person for purposes of Missouri's homicide and assault laws when the unborn child's mother was killed or assaulted by another person. Section 1.205 has even been found applicable to the manslaughter of an unborn child who was eight weeks gestational age or earlier. State v. Harrison, 390 S.W.3d 927 (Mo. Ct. App. 2013);

[Comment: The “only the courts of Missouri can...decide” statement implies that SCOTUS will accept what the Missouri courts decide. That implication would ignore the context in the Webster ruling. The ruling said that since the Missouri law not only lacked any criminal penalties for abortion, but promised not to restrict abortion, there was no case for SCOTUS to review. (This year’s law says Missour’s goal is to “(3) Regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes.” The 1987 law made a similar promise. Since abortion was a “fundamental right”, according to Roe, state laws had to be the “least restrictive means of achieving a compelling government interest”. But Webster placed before the Court no restriction for SCOTUS to review. So the case was not “ripe”, the ruling concluded. But had there been penalties for abortion, SCOTUS would not have accepted whatever Missouri courts said about them!)

(6) In medicine, a special emphasis is placed on the heartbeat. The heartbeat is a discernible sign of life at every stage of human existence. During the fifth week of gestational age, an unborn child's heart begins to beat and blood flow begins during the sixth week;

(7) Depending on the ultrasound equipment being used, the unborn child's heartbeat can be visually detected as early as six to eight weeks gestational age. By about twelve weeks ge stational age, the unborn child's heartbeat can consistently be made audible through the use of a handheld Doppler fetal heart rate device;

(8) Confirmation of a pregnancy can be indicated through the detection of the unborn child's heartbeat, while the absence of a heartbeat can be an indicator of the death of the unborn child if the child has reached the point of development when a heartbeat should be detectable;

(9) Heart rate monitoring during pregnancy and labor is utilized to measure the heart rate and rhythm of the unborn child, at an average rate between one hundred ten and one hundred sixty beats per minute, and helps determine the health of the unborn child;

(10) The Supreme Court in Roe discussed “the difficult question of when life begins” andwrote: “[p]hysicians and their scientific colleagues have regarded[quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable’, that is, potentially able to live outside the mother's womb, albeit with artificial aid”. Roe, 410 U.S. at 160. Today, however, physicians’ and scientists’ interests on life in the womb also focus on other markers of development in the unborn child, including, but not limited to, presence of a heartbeat, brain development, a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, [survivability of a 3rd month preemie] and the ability to experience pain;

[Comment: This is a clever justification for redefining Roe’s “viability” which I had not previously heard of or considered. I wonder who originated this approach?

[Roe had ruled that states may restrict abortion only after “viability”, defined, as “potentially able to live outside the mother's womb, albeit with artificial aid”. Until now there hadn’t been much hope of breaking that barrier, even though 4-month preemies have survived.

[But this approach builds on the factual basis for Roe’s viability standard: Roe noted that viability in 1973, which was roughly the same time as quickening in 1873, was when court-recognized fact finders applied serious penalties for abortion. But why? Missouri points out the reason: that is when our great great great grandparents were sure there was human life in the womb. Luke 1 says it was at the end of the second trimester that John the Baptist leaped in Elizabeth’s womb.

[Roe glossed over that little detail. Without directly saying so, Missouri exposes that omission and corrects it. What our ancestors cared about wasn’t a certain time frame, but when they could recognize human life. Since Roe cared about what they cared about, we should too; but now we know there is life from minute one.

[However, Missouri’s Findings of Facts do not apply this principle to outlawing all abortions, but all those after a heartbeat is heard – since a detectable heartbeat is already estabilished in law as evidence of human life.]

(11) In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), the Supreme Court noted that “we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term”. Id. at 64. Due to advances in medical technology and diagnoses, present-day physicians and scientists now describe the viability of an unborn child in an additional manner, by determining whether there is a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy;

(12) While the overall risk of miscarriage after clinical recognition of pregnancy is twelve to fifteen percent, the incidence decreases significantly if cardiac activity in the unborn child has been confirmed. The detection of a heartbeat in an unborn child is a reliable indicator of a viable pregnancy and that the unborn child will likely survive to birth, especially if presenting for a prenatal visit at eight weeks gestational age or later. For asymptomatic women attending a first prenatal visit between six and eleven weeks gestational age where a heartbeat was confirmed through an ultrasound, the subsequent risk of miscarriage is one and six-tenths percent. Although the risk is higher at six weeks gestational age at nine and four-tenths percent, it declines rapidly to one and five -tenths percent at eight weeks gestational age, and less than one percent at nine weeks gestational age or later;

[Note the shift in the definition of “viability”. Now it means “survivability”. Finding #10 had invoked “heartbeat, brain development, [survivability of a 3rd month preemie], and the ability to experience pain; ” as evidence of human life; now, in Finding #12, “viability” is redefined from Roe’s meaning of “able to survive outside the womb” to “likely to survive INSIDE the womb”! The Findings that follow pour overwhelming evidence behind this new definition, as if our new measure of whether to let humans live is the likelihood of how long they will survive if we don’t kill them. This standard, applied to adults, would have us eliminate old people, and everyone in hospital intensive care units. [Not that I want Missouri’s findings to fail in court. Not that I would have voted against them had I been in their legislature. I support any logic that saves lives. Nevertheless where a prolife defense is weak I would like to see it strengthened before it gets to court.]

(13) The presence of a heartbeat in an unborn child represents a more definable point of ascertaining survivability than the ambiguous concept of viability that has been adopted by the Supreme Court, especially since if a heartbeat is detected at eight weeks gestational age or later in a normal pregnancy, there is likely to be a viable pregnancy and there is a high probability that the unborn child will survive to birth;

[Fascinating. “Viable” means “able to succeed”. “Viable pregnancy” means the baby appears healthy enough to survive through birth. It is Roe’s use of “viable” which was weird, meaning able to survive if removed from the womb.]

(14) The placenta begins developing during the early first trimester of pregnancy and performs a respiratory function by making oxygen supply to and carbon dioxide removal from the unborn child possible later in the first trimester and throughout the second and third trimesters of pregnancy;

(15) By the fifth week of gestation, the development of the brain of the unborn child is underway. Brain waves have been measured and recorded as early as the eighth week of gestational age in children who were removed during an ectopic pregnancy or hysterectomy. Fetal magnetic resonance imaging (MRI) of an unborn child's brain is used during the second and third trimesters of pregnancy and brain activity has been observed using MRI; [Now the Findings return to using these facts to document human life.]

(16) Missouri law identifies the presence of circulation, respiration, and brain function as indicia of life under section 194.005, as the presence of circulation, respiration, and brain function indicates that such person is not legally dead, but is legally alive;

(17) Unborn children at eight weeks gestational age show spontaneous movements, such as a twitching of the trunk and developing limbs. It has been reported that unborn children at this stage show reflex responses to touch. The perioral area is the first part of the unborn child's body to respond to touch at about eight weeks gestational age and by fourteen weeks gestational age most of the unborn child's body is responsive to touch;

(18) Peripheral cutaneous sensory receptors, the receptors that feel pain, develop early in the unborn child. They appear in the perioral cutaneous area at around seven to eight weeks gestational age, inthe palmar regions at ten to ten and a half weeks gestational age, the abdominal wall at fifteen weeks gestational age, and over all of the unborn child's body at sixteen weeks gestational age;

(19) Substance P, a peptide that functions as a neurotransmitter, especially in the transmission of pain, is present in the dorsal horn of the spinal cord of the unborn child at eight to ten weeks ge stational age. Enkephalins, peptides that play a role in neurotransmission and pain modulation, are present in the dorsal horn at twelve to fourteen weeks gestational age;

(20) When intrauterine needling is performed on an unborn child at sixteen weeks gestational age or later, the reaction to this invasive stimulus is blood flow redistribution to the brain. Increased blood flow to the brain is the same type of stress response seen in a born child and an adult;

(21) By sixteen weeks gestational age, pain transmission from a peripheral receptor to the cortex is possible in the unborn child;

(22) Physicians provide anesthesia during in utero treatment of unborn children as early as sixteen weeks gestational age for certain procedures, including those to correct fetal urinary tract obstruction. Anesthesia is administered by ultrasound-guided injection into the arm or leg of the unborn child;

(23) A leading textbook on prenatal development of the human brain states, “It may be concluded that, although nociperception (the actual perception of pain) awaits the appearance of consciousness, nociception (the experience of pain) is present some time before birth. In the absence of disproof, it is merely prudent to assume that pain can be experienced even early in prenatal life (Dr. J. Wisser, Zürich): the fetus should be given the benefit of the doubt". Ronan O'Rahilly & Fabiola Müller. The Embryonic Human Brain: An Atlas of Developmental Stages (3d ed. 2005);

(24) By fourteen or fifteen weeks gestational age or later, the predominant abortion method in Missouri is dilation and evacuation (D & E). The D & E abortion method includes the dismemberment, disarticulation, and exsanguination of the unborn child, causing the unborn child's death;

(25) The Supreme Court acknowledged in Gonzales v. Carhart, 550 U.S. 124, 160 (2007), that “the standard D & E is in some respects as brutal, if not more, than the intact D & E” partial birth abortion method banned by Congress and upheld as facially constitutional by the Supreme Court, even though the federal ban was applicable both before and after viability and had no exception for the health of the mother;

(26) Missouri's ban on the partial birth abortion method, section 565.300, is in effect because of Gonzale s v. Carhart and the Supreme Court's subsequent decision in Nixon v. Reproductive Health Services of PlannedParenthoodofthe St. Louis Region, Inc., 550 U.S. 901 (2007), to vacate and remand to the appellate court the prior invalidation of section 565.300. Since section 565.300, like Congress’ ban on partial birth abortion, is applicable both before and after viability, there is ample precedent for the general assembly to constitutionally prohibit the brutal D & E abortion method at fourteen weeks gestational age or later, even before the unborn child is viable, with a medical emergency 146 exception;

(27) In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court determined that “evolving standards of decency” dictated that a Missouri statute allowing the death penalty for a conviction of murder in the first degree for a person under eighteen years of age when the crime was committed was unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution because it violated the prohibition against “cruel and unusual punishments”;

(28) In Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019), the Supreme Court noted that “ ‘[d]isgusting’ practices” like disemboweling and quartering “readily qualified as ‘cruel and unusual’, as a reader at the time of the Eighth Amendment's adoption would have understood those words”; [Bingo!]

(29) Evolving standards of decency dictate that Missouri should prohibit the brutal and painful D & E abortion method at fourteen weeks gestational age or later, with a medical emergency exception, because if a comparable method of killing was used on: (a) A person convicted of murder in the first degree, it would be cruel and unusual punishment; or (b) An animal, it would be unlawful under state law because it would not be a humane method, humane euthanasia, or humane killing of certain animals under chapters 273 and 578; [Amen! It would be against the law to do to your own puppy what you can do to your own baby – and even Missouri’s law, if it survives courts, will still let YOU kill your own baby!]

(30) In Roper, the Supreme Court also found that “[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions”. Roper, 543 U.S. at 578. In its opinion, the Supreme Court was instructed by “international covenants prohibiting the juvenile death penalty”, such as the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171. Id. at 577;

(31) The opinion of the world community, reflected in the laws of the United Nation’s 193-member states and six other entities, is that in most countries, most abortions are prohibited after twelve weeks gestational age or later;

(32) The opinion of the world community is also shared by most Americans, who believe that most abortions in the second and third trimesters of pregnancy should be illegal, based on polling that has remained consistent since 1996;

(33) Abortion procedures performed later in pregnancy have a higher medical risk for women. Compared to an abortion at eight weeks gestational age or earlier, the relative risk increases exponentially at later gestational ages. The relative risk of death for a pregnant woman who had an abortion performed or induced upon her at:

(a) Eleven to twelve weeks gestational age is between three and four times higher than an abortion at eight weeks gestational age or earlier;

(b) Thirteen to fifteen weeks gestational age is almost fifteen times higher than an abortion at eight weeks gestational age or earlier;

(c) Sixteen to twenty weeks gestational age is almost thirty times higher than an abortion at eight weeks gestational age or earlier; and

(d) Twenty-one weeks gestational age or later is more than seventy-five times higher than an abortion at eight weeks gestational age or earlier;

(34) In addition to the short-term risks of an abortion, studies have found that the long-term physical and psychological consequences of abortion for women include, but are not limited to, an increased risk of preterm birth, low birthweight babies, and placenta previa in subsequent pregnancies, as well as serious behavioral health issues. These risks increase as abortions are performed or induced at later gestational ages. These consequences of an abortion have a detrimental effect not only on women, their children, and their families, but also on an already burdened health care system, taxpayers, and the workforce;

(35) A large percentage of women who have an abortion performed or induced upon them in Missouri each year are at less than eight weeks gestational age, a large majority are at less than fourteen weeks gestational age, a larger majority are at less than eighteen weeks gestational age, and an even larger majority are at less than twenty weeks gestational age. A prohibition on performing or inducing an abortion at eight weeks gestational age or later, with a medical emergency exception, does not amount to a substantial obstacle to a large fraction of women for whom the prohibition is relevant, which is pregnant women in Missouri who are seeking an abortion while not experiencing a medical emergency. The burden that a prohibition on performing or inducing an abortion at eight, fourteen, eighteen, or twenty weeks gestational age or later, with a medical emergency exception, might impose on abortion access, is outweighed by the benefits conferred upon the following:

(a) Women more advanced in pregnancy who are at greater risk of harm from abortion;

(b) Unborn children at later stages of development;

(c) The medical profession, by preserving its integrity and fulfilling its commitment to do no harm; and

(d) Society, by fostering respect for human life, born and unborn, at all stages of development, and by lessening societal tolerance of violence against innocent human life;

[This finding, #35, invokes the “substantial burden” test, invites courts to rule on whether whether one or more of these restrictions are a “substantial burden” on the “constitutional right of a woman to choose”. Other findings invite the courts to rule on whether babies are humans protected by the 14th Amendment which would make all abortions unlawful, but courts have a 46-year-long habit of ducking that issue, and when a case presents an issue they don’t mind and another issue they hate, courts are sorely tempted to rule on the issue they don’t mind and ignore the other. If I weren’t concerned about that, I would admire this approach of throwing up every issue in the hope some will stick.]

(36) In Webster, the Supreme Court noted, in upholding a Missouri statute, “that there may be a 4-week error in estimating gestational age”. Webster, 492 U.S. at 516. Thus, an unborn child thought to be eight weeks gestational age might in fact be twelve weeks gestational age, when an abortion poses a greater risk to the woman and the unborn child is considerably more developed. An unborn child at fourteen weeks gestational age might be eighteen weeks gestational age and an unborn child at eighteen weeks gestational age might be twenty-two weeks gestational age, when an abortion poses a greater risk to the woman, the unborn child is considerably more developed, the abortion method likely to be employed is more brutal, and the risk of pain experienced by the unborn child is greater. An unborn child at twenty weeks gestational age might be twenty-four weeks gestational age, when an abortion poses a greater risk to the woman, the unborn child is considerably more developed, the abortion method likely to be employed is more brutal, the risk of pain experienced by the unborn child is greater, and the unborn child may be viable.

3. The state of Missouri is bound by Article VI, Clause 2 of the Constitution of the United States that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”. One such treaty is the International Covenant on Civil and Political Rights, entered into force on March 23, 1976, and adopted by the United States on September 8, 1992. In ratifying the Covenant, the United States declared that while the provisions of Articles 1 through 27 of the Covenant are not self executing, the United States' understanding is that state governments share responsibility with the federal government in implementing the Covenant.

4. Article 6, Paragraph 1, U.N.T.S. at 174, of the International Covenant on Civil and Political Rights states, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. The state of Missouri takes seriously its obligation to comply with the Covenant and to implement this paragraph as it relates to the inherent right to life of unborn human beings, protecting the rights of unborn human beings by law, and ensuring that such unborn human beings are not arbitrarily deprived of life. The state of Missouri hereby implements Article 6, Paragraph 1 of the Covenant by the regulation of abortion in this state.

5. The state of Missouri has interests that include, but are not limited to: (1) Protecting unborn children throughout pregnancy and preserving and promoting their lives from conception to birth; (2) Encouraging childbirth over abortion; (3) Ensuring respect for all human life from conception to natural death; (4) Safeguarding an unborn child from the serious harm of pain by an abortion method that would cause the unborn child to experience pain while she or he is being killed; (5) Preserving the integrity of the medical profession and regulating and restricting practices that might cause the medical profession or society as a whole to become insensitive, even disdainful, to life. This includes regulating and restricting abortion methods that are not only brutal and painful, but if allowed to continue, will further coarsen society to the humanity of not only unborn children, but all vulnerable and innocent human life, making it increasingly difficult to protect such life;

[These “compelling government interests” are similar to the state interests acknowledged by the 11th Circuit in shooting down Alabama’s law requiring abortionists, before they dismember babies, to kill them with less pain. While the 11th Circuit spoke kindly of these purposes, it said that even the most righteous state interests can’t have the “effect or purpose” of putting a “substantial obstacle” in the path of abortion. But here Missouri invokes a treaty, which our Constitution makes “the supreme law of the land” right along with a “constitutional right”, and the two are in collision! How interesting!] [More state interests:]

(6) Ending the incongruities in state law by permitting some unborn children to be killed by abortion, while requiring that unborn children be protected in non-abortion circumstances through, including, but not limited to, homicide, assault, self-defense, and defense of another statutes; laws guaranteeing prenatal health care, emergency care, and testing; state-sponsored health insurance for unborn children; the prohibition of restraints in correctional institutions to protect pregnant offenders and their unborn children; and protecting the interests of unborn children by the appointment of conservators, guardians, and representatives; (7) Reducing the risks of harm to pregnant women who obtain abortions later in pregnancy; and (8) Avoiding burdens on the health care system, taxpayers, and the workforce because of increased preterm births, low birthweight babies, compromised pregnancies, extended postpartum recoveries, and behavioral health problems caused by the long-term effects of abortions performed or induced later in the pregnancy.