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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 HB126, signed into law May 24, 2019?

Missouri now requires abortionists to inform moms with an awesome body of information about the development of their babies, the suffering to which abortion subjects their babies, and the risks to themselves.

And in case a baby survives a chemical abortion, (ie. RU486), the abortionist has to carry a special $1 million policy for each survivor, called "tail" insurance, which is designed to continue its coverage for each survivor for 21 years to compensate for "birth defects, disability, or other injury" attributable to the abortion, if it was warned of on the FDA list of side effects, or in any peer-reviewed medical article!

Besides all that, Missouri banned all abortions after 20 weeks! Oh, and also, after 18 weeks! And after 14 weeks! And after 8 weeks! And after fertilization!

(Yeah, I know. That doesn't make sense. But each ban has a "severability" paragraph, which says if a court overturns that section, it will be "severed" from the rest of the law, which will then stay in force. So Missouri's implied hope is that if for example courts strike down the 8 week ban, maybe they will leave the 14 week ban alone. It's a "kitchen sink" approach, which is appropriate with abortion law which is so confusing and contradictory that no one can predict what courts will allow.)

The Issues these laws will raise in Court

When these laws are reviewed in court, the issue will be "is this restriction a 'substantial obstacle' to a mother's constitutionally protected right to murder her very own baby?" (Or words to that effect.) The issue in court will NOT be "is legal abortion a substantial obstacle to a baby's constitutionally protected right to live?" For three reasons: because HB126 does not mention a baby's right to live which must not face a "substantial obstacle", because even though HB126 "substantially" blocks abortion HB126 says it does not, and because the one section of HB126 that would block abortions from conception is not scheduled to take effect until Roe is overturned.

An 8-week murder season "substantially" bans abortion, but HB126 says it doesn't

An 8-week murder season would be a nearly complete ban, since women often can't be sure they are even pregnant within 8 weeks. But HB126 makes the argument that "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...."

Why does HB126 say that? And why is that important? How does that keep courts from acknowledging that all babies are people?

HB126 says that to dodge the Casey (1992) and Hellerstedt (2016) rulings that no restriction of abortion can be a "substantial obstacle" to abortion; nor can it have for its purpose, to restrict abortion; there has to be some other reason for the restriction than saving lives.

That enables judges to dodge "when life begins" by finding some lesser point to rule on so they can say they judged something. Judges so far have shown much interest in ruling that some restriction is, indeed, a "substantial obstacle" to a woman's right to manage her own health, so the law can be overturned on that basis, without having to "reach" the issue of whether babies are people which makes murderers of abortionists.

That is why it is important, to any state which wants courts to address the evidence of "when life begins", that its abortion ban (1) be plainly, deliberately, and defiantly "substantial", (2) argue directly that it is a baby's right to live which must not face any "substantial obstacle" such as legal abortion, and (3) include the overwhelming court-recognized evidence of court-recognized fact finders proving that babies are people and baby killers are murderers.

The ACLU's claim that the restriction is substantial is persuasive: "This dangerous bill" (well, except for calling life saving "dangerous") "criminalizes abortion at nearly every stage of pregnancy."

Therefore the issue the judge will address, rather than "when life begins", will be whether an 8 week window, or a 14, 18, or 20 week window, will be a "substantial obstacle" before a woman's right to manage her own health, in a context of Roe's professed inability of judges to know if babies are people.

Of course a judge COULD see Missouri's marvelous evidence that "life begins at conception", and rule in favor of babies on every point, and even give more than Missouri asks. But if judges rule as they have, they will seize any excuse to NOT address that evidence, and Missouri's statement that an 8 week ban is not that much of an "obstacle" will provide, I fear, a great excuse.

HB126 does not SAY the right of babies to live must not face a "substantial obstacle"

Although judges frequently and notoriously rule by arguments never thought of by either of the parties, it is a violation of judicial ethics to do so, which court rulings will cite whenever a party later thinks of a new argument which the judges don't want to address, and which was not raised from the beginning. (If argument or evidence is not submitted in the district court, it can't be brought up on appeal.)

HB126's restrictions therefore do “not amount to a substantial obstacle to a large fraction of women” getting an abortion, the law says. 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 evidence, Roe said, would require all states to outlaw all abortions.

Not only is the right of babies to live not explicitly argued, but the contrary is implied by evidence that life begins at fertilization paired with protection that does not begin until 8 weeks. There is an answer to this conundrum which has perplexed many prolifers. See Roe.27s_notorious_Footnote_54. But a complete abortion ban, paired with overwhelming evidence that it saves lives from fertilization, would be less awkward.

The section of HB126 that 'would' block abortions from conception won't take effect until Roe is overturned

"When Life Begins" would would have been the issue when courts review HB126, or at least one of the issues, had Missouri let its total abortion ban (188.017) go into effect. But instead, "Section B" says that section will not go into effect until the Supreme Court reverses Roe v. Wade - meaning, in some other court case brought by some other state. (Like Alabama?). Or until the U.S. Constitution is amended. Or until Congress passes something that allows Missouri to outlaw abortion.

The last time the Supreme Court heard a Missouri abortion law, 1989 (Webster), SCOTUS explained that a review of a law is not "ripe" before it even goes into effect. Prior to 1989, as this year, Missouri had enacted a great "Personhood" declaration, but without penalties, and had promised not to enforce it in violation of 'Roe'. So SCOTUS said it is premature to judge whether a restriction is too great, before there is a restriction. (More below.)

A restriction substantial enough to make "when life begins" the issue in court can't be the legal vehicle for overturning 'Roe' if court's won't review it.

Will Medical evidence even be "relevant" to a judge?

Here are a couple of highlights from the medical knowledge summarized in HB126. But if the court issue is whether these restrictions are an "undue burden" on abortion, will medical evidence even be relevant? Were the issue "when life begins", then this evidence, and much more, would be entirely relevant.

HB126 points 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;

HB126 also cites some great court precedents from a century and a half ago through 1972 which Justice Blackmun should have acknowledged before he wrote "the unborn have never been acknowledged in the law as persons in the whole sense". The body of evidence which Missouri did NOT cite, which I urge every prolife attorney in every prolife case to cite, is the legally recognizable evidence that babies from 0-5 weeks are also constitutionally protected which is not waiting to be introduced in some future case but which already fills the court records of thousands of cases: 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”).

How Missouri Redefines “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 - Zero Abortions - Maybe Some Day

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.

Unfortunately, this majestic section of law will never pressure any court to consider the accumulating legal recognition of "fully human" people in mothers' wombs, because this is followed by a "Section B" which promises not to enforce any of this until the Supreme Court acts first - that is, through some OTHER case - like a review of Alabama's law. That situation is a repeat of the Missouri law in 1987, I think, which made the same promise, so in 1989, in Webster, the Supreme Court said until a law is enforced, with penalties, there is no "restriction" of abortion for the Court to review. The case is not "ripe".

Since this is a law not yet in effect, it can't generate a court case, even though a good start is made in the "findings of facts" in getting this law through courts. This also repeats the situation in 1989, where the "personhood" statement was very good, very strong, but could not generate a ruling one way or the other because it was not applied to any penalties for performing any abortions.

Here is Section B:

Section B. The enactment of section 188.017 of this act shall only become effective upon

2 notification to the revisor of statutes by an opinion by the attorney general of Missouri, a

3 proclamation by the governor of Missouri, or the adoption of a concurrent resolution by the

4 Missouri general assembly that:

5 (1) The United States Supreme Court has overruled, in whole or in part, Roe v. Wade,

6 410 U.S. 113 (1973), restoring or granting to the state of Missouri the authority to regulate

7 abortion to the extent set forth in section 188.017, and that as a result, it is reasonably probable

8 that section 188.017 of this act would be upheld by the court as constitutional;

9 (2) An amendment to the Constitution of the United States has been adopted that has the

10 effect of restoring or granting to the state of Missouri the authority to regulate abortion to the

11 extent set forth in section 188.017; or

12 (3) The United States Congress has enacted a law that has the effect of restoring or

13 granting to the state of Missouri the authority to regulate abortion to the extent set forth in

14 section 188.017.

"Section B" promises only to not enforce this total ban; it leaves the 8 week, 14 week, 18 week, and 20 week bans, plus the amazing information which must be shown to mothers, to stumble their way through courts.

188.027 - Abortions allowed after mother is informed about who she wants to murder

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 physical development of the child, the statement ""The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being", and the following detailed information about the pain felt by babies being aborted:

The printed materials provided by the department shall include

87 information on the possibility of an abortion causing pain in the unborn child. This

88 information shall include, but need not be limited to, the following:

89 (a) Unborn children as early as eight weeks gestational age start to show

90 spontaneous movements and unborn children at this stage in pregnancy show reflex

91 responses to touch;

92 (b) In the unborn child, the area around his or her mouth and lips is the first part

93 of the unborn child's body to respond to touch and by fourteen weeks gestational age most

94 of the unborn child's body is responsive to touch;

95 (c) Pain re ce ptors on the unborn child's skin develop around his or her mouth at

96 around seven to eight weeks gestational age, around the palms of his or her hands at ten

97 to ten and a half weeks, on the abdominal wall at fifteen weeks, and over all of his or her

98 body at sixteen weeks gestational age;

99 (d) Beginning at sixteen weeks gestational age and later, it is possible for pain to be

100 transmitte d from receptors to the cortex of the unborn child's brain, where thinking and

101 perceiving occur;

102 (e) When a physician performs a life-saving surgery, he or she provides anesthesia

103 to unborn children as young as sixteen weeks gestational age in order to alleviate the

104 unborn child's pain; and

105 (f) A description of the actual steps in the abortion procedure to be performed or

106 induced and at which steps the abortion procedure could be painful to the unborn child;

Mothers must also be given exhaustive information about adoption and prenatal care services, including the statement ""There are public and private agencies willing and able to help you carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place him or her for adoption. The state of Missouri encourages you to contact those agencies before making a final decision about abortion. State law requires that your physician or a qualified professional give you the opportunity to call agencies like these before you undergo an abortion."

188.028 - Consent of Parents for mothers under 18

Missouri law had already required the consent of one parent before a child under 18 may have an abortion. This year's law adds that the parent giving consent must have first notified any other parent or guardian. Exceptions are made for former parents who, for example, are nowhere to be found, or who are convicted sexual offenders. The child may override the parents' will by going to a judge, but then the child must be given the same comprehensive information as required for adult mothers seeking an abortion.

188.033 - Information requirement not evaded by referring to out-of-state abortionists

This new section requires that any abortionist or "family planning" organization which refers a mom to an out-of-state abortionist must supply the mom with all the information required before an in-state abortion. That is required whether the referral is in person, by phone, or online; when the referral is not in person, the mom must be offered the material printed by the state by overnight or same-day delivery, or electronically, whichever the mom prefers.

188.038 - Abortions motivated by race, sex, or disability bias outlawed - OR TO COVER UP SHAME

Paragraph #4 of this section subjects abortionists to a full range of penalties for doing an abortion when he knows the motivation for getting an abortion is a "prenatal diagnosis...indicating Down Syndrome" (see paragraph #2) or "because of the sex or race of the unborn child" (see paragraph #3). No other disabilities than Downs Syndrome are protected. Surely there was heated debate over that omission.

But no penalties apply for the most breathtaking bias that is articulated in paragraph #1: against being pregnant, when you are not married. And against the children born out of wedlock! "When you are not married" and "born out of wedlock" is not articulated, but is strongly implied by the fact that nobody ever heard of bias against being pregnant when you are married, or against being born to married parents. Here is the paragraph:

188.038. 1. The general assembly of this state finds that:

2 (1) Removing vestiges of any past bias or discrimination against pregnant women,

3 their partners, and their family members, including their unborn children, is an important

4 task for those in the legal, medical, social services, and human services professions;

5 (2) Ending any current bias or discrimination against pregnant women, their

6 partners, and their family members, including their unborn children, is a legitimate

7 purpose of government in order to guarante e that those who "are endowed by their

8 Creator with ce rtain unalienable Rights" can enjoy "Life, Liberty and the pursuit of

9 Happiness";

The rest of these "findings" gives Planned Barrenhood a well-deserved call-out:

10 (3) The historical re lationship of bias or discrimination by some family planning

11 programs and policies towards poor and minority populations, including, but not limited

12 to, the nonconsensual sterilization of mentally ill, poor, minority, and immigrant women

13 and other coercive family planning programs and policies, must be rejected;

14 (4) Among Missouri residents, the rate of black or African-American women who

15 undergo abortions is significantly higher, about three and a half times higher, than the rate

16 of white women who undergo abortions. Among Missouri residents, the rate of black or

17 African-American women who undergo repeat abortions is significantly higher, about one

18 and a half times higher, than the rate of white women who undergo repeat abortions;

19 (5) Performing or inducing an abortion because of the sex of the unborn child is

20 repugnant to the values of equality of females and males and the same opportunities for

21 girls and boys, and furthers a false mindset of female inferiority;

22 (6) Government has a legitimate interest in preventing the abortion of unborn

23 children with Down Syndrome because it is a form of bias or disability discrimination and

24 victimizes the disabled unborn child at his or her most vulnerable stage. Eliminating

25 unborn children with Down Syndrome raises grave concerns for the lives of those who do

26 live with disabilities. It sends a message of dwindling support for their unique challenges,

27 fosters a false sense that disability is something that could have been avoidable, and is

28 likely to increase the stigma associated with disability.

188.043, 188.044 Insurance

This section increases the insurance which abortionists must carry from $500,000 to $1 million per occurrence, and $3 million total for a year.

In addition, "Tail Insurance" in the same amounts must be carried for each survivor of a chemical abortion, and kept in force for 21 years for each survivor, to cover death or injury which may credited to the chemical abortion. How can insurance be kept in force after a policy is canceled, for example if the insured dies? ""tail insurance" means insurance which covers the legal liability of the insured once a medical malpractice insurance policy is cancelled,...and covers claims made after such cancellation....for acts occurring during the period the prior medical malpractice insurance was in effect." Fascinating.

Not every harm to a survivor is covered, but only those harms which are warned of on the FDA label of the dose, or in any "peer-reviewed medical journal article".

It is not specified that the harmed child or parents seeking an insurance settlement must prove a connection of the harm to the abortion, but that is implied. Not explained is how a parent would even know there was still any insurance coverage, in the case where an abortionist has gone out of business or has died. There is no requirement that an abortionist tell his patients about it.

188.052 - Statistical reporting by abortionists to the state

Missouri law already required abortionists to report several details of each abortion to the state. Added this year are updates certifying that the abortionist has given moms all the information required, and did no abortions where a known motivation was race, sex, or disability.

One other detail in several of these sections: previous law applied for any abortionist who "performed" an abortion. This law adds "or induced" an abortion; in other words, it applies not just to surgical but also to chemical abortions.

188.056 - no abortions after X weeks

188.056 outlaws all abortions (except for "medical emergencies") after 8 weeks. Violation is a "Class B felony". Mothers are exempted from criminal penalties: only the abortionists will be charged.

188.057 outlaws them after 14 weeks.

188.058 outlaws them after 18 weeks.

188.375 outlaws them after 20 weeks, when the child is "pain-capable". If an abortionist is prosecuted for an abortion after 20 weeks, at least he will not also be prosecuted for the same abortion after 8, 14, and 18 weeks. PLUS in aborting so late term a baby, the abortionists must use "the available method or technique of abortion most likely to preserve the life or health of the unborn child"!! In cases of medical emergency, a second doctor must be ready to care for the child if the child is born alive!! Violations are a Class D felony.

Missouri's Finding of Facts, with 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.

Findings that Justify Outlawing ALL Abortions

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!)

Findings Justifying Outlawing Abortions After 6-8 Weeks

(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;

Findings That Update the Meaning of "Viability"

(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;

Viable Pregnancy: likelihood of survival IN the womb until natural birth

(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.]

Other "Viability" indicators: placenta, respiration, brain waves, twitching

(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;

Justifying Abortion Ban after 14-16 Weeks

(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;

Surgeons need anesthesia by 16 weeks

(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);

Even the Supreme Court calls 16 week abortions "brutal"

(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;

Courts call executions of youth "indecent", "disgusting"

(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!]

Such brutal killing of an ANIMAL gets you jail time

(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!]

Disgust with executions of juveniles, even for crimes, is international

(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;

Increasing risk to moms, the later the baby killing

(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;

Most abortions are before 8 weeks; so an 8-week ban is not a "substantial obstacle" compared to benefits

(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.

Benefit of a ban: Compliance with International Treaty

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.

Benefits to Society, Rule of Law, Taxpayers, Public Health of an Abortion Ban listed

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.

Missouri Encyclopedia of Abortion Arguments

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