Missouri Legislature: Coerced Pregnancy, Fine; Voluntary Abortion, No Way

Pamela Merritt

A Missouri bill would make physicians criminals for helping women obtain an abortion "with knowledge" that the woman has been "coerced" and would prohibit the woman from consenting to an abortion as the "victim of a coerced abortion."

I’ve got a case of legislative
deja vu.  Spring is in the air and Missouri state
legislators are trying to pass another abortion restriction bill – yep,
this has
definitely happened before

The Missouri House passed this
year’s abortion restriction bill, HCS
HB 46 & 434 (Davis/Pratt)
,
and once again it is full of new and unnecessary requirements to the
informed consent procedure for abortion.  (Once the bill reached the Senate, pro-choice Senate Dems filibustered, and the bill has not been voted on.)  The bill would also create
the new crime of "coercing an abortion" which threatens felony convictions
for anyone found guilty of that vaguely defined crime.  As with
previous abortion restriction bills, HCS HB 46 & 434 mandate that
government step into the doctor/patient relationship while ignoring
the standard practice of medical care already in place for abortion
providers in Missouri.  

Despite protests from advocates
against domestic violence, sponsors and supporters of HCS HB 46 & 434 took to the floor of the Missouri House and claimed to be protecting
women from being coerced into having an abortion.  The legislation
would create the crime of "coercing an abortion" if a woman has
experienced threats of having a scholarship for higher education at
a public or private institution revoked because she is pregnant; threats of employment discrimination or termination if she continues
her pregnancy; stalking, assault or domestic assault.  Many of
the people with whom I discussed HCS HB 46 & 434 were initially supportive
until they looked beneath the surface.  The bill would make physicians
and anyone assisting them criminals for helping women obtain an abortion
"with knowledge" that the woman has been "coerced" and  would
prohibit the woman from consenting to an abortion as the "victim of
a coerced abortion."

Here’s an example of this
proposed law in action. 

Consider a woman who is pregnant
as the result of rape who, with her doctor, decides that an abortion
is the best course of action.  Imagine that rape survivor also
mentions to her doctor that her boyfriend agrees with her decision,
but has been aggressive with her about it. With HB46, now the doctor
must turn the situation over to the government which mandates that the
doctor label that rape survivor a "victim of coerced abortion" who
"lacks the consent required by law." [Text
is quoted directly from the last paragraph of the bill.

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HCS HB 46 & 434 is a clever
revision of last year’s abortion restriction bill and opponents must
navigate some complicated linguistic terrain.  No one wants women
to be forced to do anything against our will, but denying women our
right to make decisions with our doctor if we are survivors of crime
is not the definition of protection anymore than forcing a rape survivor
to carry a pregnancy resulting from rape to term is the definition of
empowerment.  Beyond the smoke and mirrors, the reality is clear. 
In the world that HCS HB 46 & 434 would create, women are denied
a voice and subjected to half a dozen new legal hurdles to access reproductive
healthcare, doctors and healthcare providers are made criminals for
following their patient’s clearly expressed wishes, family members
and counselors risk criminal prosecution for giving advice and the all
powerful state gets an instant medical degree complete with a front
row seat to private medical appointments. 

What’s amazing is how the
same anti-choice Missouri lawmakers manage to contradict themselves
this session.  Anti-choice legislators passed the abortion restriction
bill HCS HB 46 & 434 allegedly to protect women from the crime of
coercion.  Simultaneously, they are also trying to pass pharmacy denial legislation
House Bills 226 and 533, that would protect pharmacies from
legal action if their employees refuse to dispense emergency contraception
that would prevent unwanted pregnancies.  Keep in mind that refusing
to fill a prescription for emergency contraception would not be considered coercion,
even though it could potentially force a woman to carry an unwanted
pregnancy to term.  It gets better: anti-choice Senators would
also like to pass  SB459 and SB
529
, which would
criminalize a pregnant woman who goes to term with a pregnancy before
she is able to overcome her drug or alcohol problem.   

I have to wonder if SB459 and
SB 529 would open up the legislature to felony prosecution for committing
the crime of "coercing and abortion" should the abortion restriction
bill HCS HB 46 & 434 become law, because it threatens women with
unemployment, incarceration and the potential loss of scholarships should
they carry their pregnancy to term while addicted to drugs or alcohol. 

Missouri has a new pro-choice
Governor and many speculate that the anti-choice state legislature is
setting up a test of Governor Nixon’s ability to sustain a veto. 
Meanwhile, legislation like the 2009 Prevention First Act  and
several bills that would promote prevention and health in Missouri languish
unaddressed.  Now comes word that the same legislative body that
passed HCS HB 46 & 434 to allegedly protect women and unborn children
has voted
to not expand the State Children’s Health Insurance Program
to cover 27,000 more uninsured born
children when Missouri families need it most.  

This Missouri resident wishes
someone would create the new crime of wasting the people’s time while
committing legislative stupidity. 

Analysis Law and Policy

Religious Accommodations Try to Turn Back the Clock

Elizabeth Reiner Platt

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

“Oh, it’s a big problem with the members of my church, my community, and my mother-in-law .… They don’t allow that black and white shacking.”

That was the explanation Mississippi landlord Gene Baker gave for evicting Erica Flores Dunahoo and her husband, National Guard Sgt. Stanley Hoskins, from his RV park in February, Dunahoo told the Clarion-Ledger newspaper. Dunahoo, who is Latina and Native American, and Hoskins, who is Black, moved to another RV park with higher rent.

What’s even more troubling, however, is that some state laws recently introduced across the country would actually sanction this type of discrimination. While the couple’s eviction would likely violate the federal Fair Housing Act, which applies to most housing providers nationwide, some recently proposed state bills would create religious exemptions to state and local anti-discrimination laws—many of which provide important protections to people who may not be sufficiently covered by federal law. (As a side note, Mississippi is actually one of few states that has no state Fair Housing Act).

Just as the Civil Right Act of 1964 prompted segregationists to demand religious exemptions from the law, the gains of the LGBTQ rights movement has led to the introduction of dozens of state bills designed to provide individuals and companies with a license to discriminate based on their religious beliefs. While these new bills may be motivated by opposition to LGBTQ rights, it’s important to note that many of these vague, broad, and poorly worded bills would not just affect the LGBTQ community—they could also renew demands for a religious right to discriminate on the basis of race, sex, or other factors.

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Many academics, advocates, journalists, and politicians have already noted that today’s religious objections mirror those made by opponents of desegregation in the past. Religious exemptions from the Civil Rights Act were considered both by the legislature and by federal courts. But while there is a long history of religious resistance to desegregation, both Congress and the Supreme Court flatly rejected religious exemptions from anti-discrimination law in the 1960s.

An early version of the Civil Rights Act of 1964 excused religiously affiliated employers from compliance with the entire act. This was discarded, however, and Congress’ final draft of the Civil Rights Act only exempted religious organizations from religious discrimination provisions, so that they could give special preference to people who shared the organization’s religious faith.

Once the Civil Rights Act was passed, some business owners, like Maurice Bessinger of the South Carolina-based barbecue chain Piggie Park, argued in court that even without an exemption, under the First Amendment their religious beliefs should protect them from being forced to desegregate. In the 1968 case Newman v. Piggie Park Enterprises, Inc., the Supreme Court called the restaurant’s religious liberty claims “patently frivolous.”

Despite the fact that a religious right to segregation was prohibited decades ago, Dunahoo and Hoskins’ experience shows that religiously motivated racial discrimination is still alive and well today.

While some bills—like Missouri’s SJR 39, which died in committee in late April—focus more narrowly on religious objections to marriage between persons of the same sex, other bills would protect those who oppose interfaith or interracial marriage or even desegregation. Georgia’s HB 757, which was vetoed by Republican Gov. Nathan Deal in early April, could have allowed government clerks to refuse to provide marriage licenses to interracial couples or religious organizations to refuse to provide any “social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief.” Kentucky’s SB 180, which passed the state senate in March and is now awaiting a vote in the house, contains similar provisions.

And while federal laws including the Civil Rights Act and the Fair Housing Act contain strong protections against racial discrimination, accommodations that close off discrimination claims based on state or local law are nevertheless significant.

Nearly every U.S. state and many municipalities have adopted at least some anti-discrimination protections in employment, housing, or public accommodations. These state- or local-level discrimination claims may be easier to litigate than federal anti-discrimination laws. For example, they may require a lower standard of proof to show that discrimination occurred. Additionally, state and local discrimination laws often cover smaller landlords or businesses than federal law. Finally, state and local claims may provide additional monetary damages or other forms of relief to those who face discrimination. By carving out religious exemptions from state and local anti-discrimination law, accommodation bills would force people of color and other marginalized populations to once again bear the burden of others’ discriminatory religious beliefs.

State laws that allow for religiously motivated discrimination would also close off other legal claims, such as those based on contract violations. For example, if a religiously affiliated company fired an employee for marrying someone of a different race, she may lose the right to sue based on breach of an employment contract if the employer is covered by a broad accommodation law.

Furthermore, it’s possible that those who wish to discriminate could also demand an exemption from federal anti-discrimination law under the Religious Freedom Restoration Act. This is the same law the craft store giant Hobby Lobby used to avoid providing its employees with contraception, as required by the Affordable Care Act.

In order to succeed with such an argument, a religious objector would have to show that hiring, housing, or serving a particular group of people (like interracial couples) would burden his exercise of religion. If this is the case, then he would win his claim unless the government could show that federal anti-discrimination law serves a “compelling government interest,” and there is no way of furthering that interest that is less burdensome to the objector’s religious exercise.

In Burwell v. Hobby Lobby, the majority opinion indicated that it believed the government does have “a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” But the Court has not actually ruled on this issue, and its failure to find an overriding government interest in women’s health, dignity, and equality in Hobby Lobby does not bode well for future cases.

By allowing religion to be used as a veil for discrimination, state legislators are ignoring the lessons of history. In Newman v. Piggie Park Enterprises, Inc., the Supreme Court dismissed a broad religious liberty claim. The argument that personal religious beliefs may trump the most basic liberty and equality rights of others should be rejected with equal force today by state governments considering religious exemption bills, and by judges being asked to find a religious right to discriminate.

Commentary Politics

Punish Women for Abortion? Spare the Outrage: That IS the ‘Mainstream’ Anti-Choice Position

Jodi Jacobson

No matter how much the anti-choice movement dissembles, there is only one reality: The laws and policies pushed by the movement and the politicians it supports punish women both explicitly and implicitly.

In 2014, Jennifer Whalen, a nursing home aide, was sentenced to between 12 and 18 months in jail. Her crime? Trying to obtain medication abortion pills for her teenage daughter, who was facing an unwanted pregnancy. Whalen, who was charged with “performing an illegal abortion,” bought the pills online because the nearest clinic from her home was 75 miles away, and because Pennsylvania has a 24-hour mandated waiting period requiring patients to make two visits to a clinic to obtain an abortion. Without health insurance, and facing loss of income from time off, the costs—of two round-trips to the clinic, a possible overnight stay in Harrisburg, and the procedure itself—became insurmountable. Out of desperation, Whalen turned to the Internet.

Whalen was arrested for a simple reason: Her daughter was pregnant and did not want to be.

Earlier this week, GOP presidential candidate Donald Trump asserted that women who have abortions should face “some form of punishment.” He since “walked it back,” political parlance for being too honest or saying the wrong thing at the wrong time. In response to his initial statement, however, the GOP and leaders of anti-choice groups collectively fell all over themselves criticizing Trump for what they declared to be a position outside the “mainstream” of their movement. Their outcry was political theater at its most insidious: Anti-choice leaders know that their real intentions—to ban abortion and punish women who have them—is a deeply unpopular opinion. So they feign concern for women by talking about “safety,” and “caring,” and “life.” No matter how much they dissemble, however, there is only one reality: The laws and policies pushed by the anti-choice movement and the politicians it supports already punish women both explicitly and implicitly, including by sending them to prison.

The anti-choice movement seeks to punish women through a web of entrapment that, spun just a little bit at a time, harms women in ways that are less noticeable to the rest of us because they don’t make headlines until women start ending up in jail.

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First, anti-choice legislators pass laws to mandate medically unnecessary waiting periods, driving up the costs of abortion care and insulting the intelligence of women who don’t need to be told to wait to figure out how to deal with their own realities. Then, they pass laws to require clinics to mimic ambulatory surgical centers, though abortion is among the safest procedures a person can obtain and there is no reason not to do them in a clinic. This forces many clinics to close because providers can’t recoup the costs of medically unnecessary building renovations, and in turn it leaves women in large swaths of a state without access to care. Then, having cut off many avenues to legal safe abortion care, lawmakers pass laws to make medication abortion inaccessible, again on medically unnecessary grounds. They also pass laws mandating that only doctors can perform abortions, even though nurses and nurse practitioners are perfectly capable of being trained to perform early abortions safely and effectively, as well as to administer medication abortion. Finally, they pass laws making self-induced abortion a crime. Put these together and the anti-choice movement has made a safe, legal abortion virtually impossible to obtain. So when, in desperation, women go to any length to end an unintended pregnancy, legislators punish them further by making them criminals and putting them into jail.

It should not be surprising then that in many states, including Georgia, Louisiana, Mississippi, Texas, and Utah, where a raft of laws similar to those mentioned above have been passed, women are taking matters into their own hands and paying the price of anti-choice laws. For example, a recent study estimated that in Texas, where abortion access has been severely limited as a result of the omnibus legislation known as HB 2, between 100,000 and 240,000 women have attempted to self-induce. Many of these women, already vulnerable because they are poor or undocumented or are made subject to racial profiling, are policed every day at medical centers and at border crossings where they go to seek medication to terminate a pregnancy. Medication that, by the way, taken correctly is completely safe and could be used for self-induction were it legal.

Women who attempt to self-induce abortion are now routinely charged with crimes. In Georgia, Kenlissia Jones was arrested in 2015 for allegedly using misoprostol to self-induce her abortion. Jones was originally facing two charges: “malice murder” and “possession of a dangerous drug” (i.e. the misoprostol). The murder charge against Jones was dropped, but she still faces punishment for the drug charge. That same year in Arkansas a nurse, Karen Collins, was arrested and faced the charge of “performing an unlicensed abortion” (a class D felony in her state) for allegedly providing a drug to a woman that would allow her to terminate her pregnancy. And in Tennessee, Anna Yocca was charged with attempted murder for a failed self-induced abortion attempt with a coat hanger. Prosecutors later dropped the attempted murder charge but said they would still pursue criminal charges against Yocca, likely for aggravated assault.

These cases are the product of anti-choice laws promoted relentlessly by Americans United for Life, the Susan B. Anthony List, the National Right to Life Committee, the Family Research Council, and others. The fact that the use of these laws to harass, frighten, indict, and imprison women is never protested by anti-choice groups tells you everything you need to know about the movement’s intentions. Punishment.

Moreover, those who seek to outlaw abortion are forever finding new and creative ways to punish women. Feticide laws, for example, were ostensibly created to allow for the prosecution of third-party actors who were violent toward pregnant women and, in turn, harmed a fetus. According to the National Conference of State Legislatures, 38 states now have feticide or “fetal homicide” laws on the books, and in 23 of these states, these laws can be applied at any stage of pregnancy. While these laws were not originally created with the intent of criminalizing pregnant women for actions they took during their own pregnancy, they are now widely used to do just that. “Pro-life” prosecutors are arresting and indicting women under such laws when they deem that either an action or lack of action by a pregnant woman causes harm to a fetus or leads to pregnancy loss. In fact, these are de facto fetal “personhood” laws of the kind promoted by anti-choice organizations such as Susan B. Anthony List.

There is Bei Bei Shuai, who was charged with murder and attempted feticide for attempting suicide while pregnant. Shuai sat in jail for 435 days until she was released on bail (where she remained under surveillance by an electronic ankle monitor). In August 2013, nearly two and a half years after her prosecution began, she accepted a plea deal to the misdemeanor charge of “criminal recklessness.”

There is Purvi Patel, who was charged with neglect of a dependent and feticide after having a pregnancy loss that the state deemed was a self-induced abortion. She is currently serving a 41-year sentence while her case is on appeal. In three states—Wisconsin, Minnesota, and South Dakota—laws on the books allow for the involuntary civil commitment of pregnant women for “not following doctors’ orders.” Recent cases in which these laws were applied include those of Alicia Beltran and Tamara Loertscher in Wisconsin. As ProPublica has noted in “How States Handle Drug Use During Pregnancy,” hundreds and potentially thousands of women in three states—Alabama, South Carolina, and Tennessee—have faced criminal prosecution under “chemical endangerment laws” that allow for the criminal prosecution of drug use during pregnancy. The anti-choice movement has pushed for and supported these laws.

This is not punishment?

And then consider AJ, a woman on whose case we reported earlier this week. AJ’s teenage daughter became pregnant. Her teacher somehow insinuated herself into the daughter’s decision-making process. Unbenownst to her mother, the teacher called another person, a stranger to this teen, who took her to a so-called crisis pregnancy center, at which the young woman was pressured under threat of “hell and damnation” to sign a document stating she did not want an abortion. These anti-choicers sent the document, containing a raft of personal information including address and social security number, to clinics and police stations in the surrounding area. When AJ’s daughter later decided, after confiding in her mother, that she did in fact want to terminate the pregnancy, they went to a clinic in Memphis, Tennessee. There, AJ found herself threatened with arrest for feticide for “coercing” her daughter to have an abortion. While there was no substance to this charge, the whole episode frightened a teen and her mom and further delayed her abortion. There are several layers of “punishment” here, including frightening a young woman with lies, tricking her into signing a bogus legal document, seeking to get her to delay the abortion until it was too late, and then threatening to arrest her mother.

There are innumerable other ways in which the anti-choice movement is actively punishing women, by, for example, supporting monitoring and harassment of women outside clinics and hospitals, making immigrant women fear arrest, and denying women access to abortion for severe fetal and developmental anomalies while slashing state funding of support for children who are severely disabled.

I could go on. The fact that these laws and policies are passed and employed throughout the country, that they  infantalize, criminalize, and otherwise treat women as children without agency is part of an overall agenda aimed at punishing women and is becoming deeply entrenched in the U.S. legal system as a direct result of the advocacy of anti-choice groups.

The anti-choice movement is built on lies. And those lies continue to be perpetuated both by its leaders, and by a media unable, unwilling, or too self-absorbed and preoccuppied with access to politicians to actually understand and report on what is happening throughout the country.