In Missouri's tough 1974 anti-abortion law one of the most powerful deterrents is a reportedly unique requirement: When a woman seeks an abortion, the physician must warn her that if he fails and a live infant is born, it will become a ward of the state, with her and the father -- if he had consented to the attempt -- having "no parental rights whatsoever."
The requirement, which carries criminal penalties for doctors, applies even to first-trimester abortions, although the state acknowledges "that a live birth has never resulted in the first 12 weeks of gestation."
Last September the 8th U.S. Circuit Court of Appeals invalidated the requirement, saying that it invades "a fundamental constitutional right of personal privacy" and is "not reasonably related to the purpose of informed consent" to surgical or medical procedures. In addition, the court said, it puts the physician in a "straitjacket."
Now Missouri has asked the Superme Court to review the ruling. A pregnancy may be beyond the first trimester without the mother knowing it, Attorney General John D. Ashcroft wrote. "Furthermore, technological advances will increase the ability of the medical profession to preserve the lives of fetuses born during the earlier stages of pregnancy" he said.
By contrast, Prank Susman, counsel for the doctors seeking affirmance of the appellate ruling accuses Missouri of having engaged in "a crude and coercive threat to dissuade women from freely electing abortion. it is totally unrelated to the concern of maternal health." And, he charged, the state has adopted "the dogmatic philosophy of those opposed to abortion under all circumstances; i.e., that abortion is the equivalent of murder."
Missouri enacted the law a year after the Supreme Court had ruled that the Constitution gives a woman the right, in the first trimester, to an abortion without interference. In that stage of development a fetus is potentially unable to live outside the womb.
On the basis of a laysuit by physicians, the court in 1976 struck down several provisions of the statute. But the justices declined to rule on the ground that only a parent from whom a child might be taken -- not a doctor who wouldn't be directly injured -- has the legal right, or "standing" to challenge it.
Later, again because of lack of standing, lower federal courts rebuffed challenges to the section. in November 1977, Circuit Judge William H. Webster, now director of the FBI, agreed that the standing problem was "insurmountable" and expressed regret that a "Jane Doe" didn't volunteer to file a suit.
But Webster denounced the section as one that was intended byu the legislature to terrify women who were considering an abortion. He termed the section a "patently unconstitutional appendage" that is "perhaps the most offensive of the in terrorem clauses... because it reflects a legislative conclusion that a woman who asserts her constitutional right to an abortion has thereby become unfit for parenthood if the child is somehow born alive."
Diagreeing, Ashcroft said that the section, "is not patently violative" of the constitutional guarantee of due process of law.
As a practical matter, the section became a deadletter when the 8th Circuit struck down the separate provision requiring doctors to inform women seeking abortions about it.
The appeals court decision applies only within the states of the 8th Circuit: Arkansas, the Dakotas, Iowa, Minnesota, Missouri and Nebraska.