With so-many Republican-controlled states passing laws designed to make abortion illegal, it’s going to be hard over the next several years to track what is happening with each of these laws as they potentially make their way to the Supreme Court.  (And the moderate conservatives are going to try to avoid this issue as long as they can.)  But I can, at least, track what is happening at the local level.

Missouri passed one of these laws this year — House Bill 126,

First, some brief background on Missouri’s legislative process.  Missouri’ legislature meets in an annual session that runs from early January until mid-May (technically, the session ends at the end of May, but all work on legislation must end by mid-May with the last two weeks for the Speaker/President Pro Tempore to sign the official copies of the bills that pass).   The Governor then has until Mid-July to sign or veto the bills (with an earlier deadline for bills passed early in the session).  The Missouri Constitution generally treats an unsigned bill as if the Governor had signed it.  (In other words, the Governor can’t block a bill by leaving it unsigned.)  Generally speaking, new laws take effect on August 28, but — by a  two-thirds vote in both Houses — the legislature can agree that there is an “emergency” for having it take effect at a different time.

Now back to House Bill 126.  House Bill 126 has two provisions that are subject to an emergency clause.  The first — Section 188.017 — criminalizes all abortions (from the moment of conception all) except in cases in which an immediate abortion is medically necessary to prevent death or a “substantial and irreversible impairment of a major bodily function” of the mother.  This part of the bill will only take effect if the state Attorney General, the Governor, or the legislature determines that Roe vs. Wade has been overturned (whether by court decision, constitutional amendment, or federal legislation).  The second provision — Section 188.028 — is a  parental consent provision and took effect on the Governor’s signature.  It is unclear how or why this provision qualifies as an emergency.

Other than these two provisions, the main part of the statute is a stair-step set of sections criminalizing abortions performed after eight weeks, fourteen weeks, or eighteen weeks, or twenty weeks.  Like the absolute ban on abortion, these provisions permit an “affirmative defense” (a defense on which the defendant has the burden of proof) that the abortion is medically necessary.  Because all of these sections carry the same penalty and the statute provides double jeopardy protections against being found guilty for the same abortion under multiple sections, it is clear that these alternatives are intended as fallbacks.  In other words, it is intended to force the courts to consider each of these alternatives with the intent to rely upon the most strict provision that survives court review.   All of the provisions criminalizing abortion treat the pregnant woman as one of the victims pf the abortion and only permit charges to be brought against the medical personnel and those who help the woman to get an abortion.

Other significant parts of the bill is the attempt by the legislature to make findings on the medical “facts” supporting their decision.  The bill also contains the typical provisions forcing abortion providers to distribute certain information to patients containing “facts’ about the risks of abortion and the development of the fetus and other restrictions that will potentially make it more difficult for any entity to actually provide an abortion within the state.

Missouri is one of those states that permit voters to propose referendums — either amendments to the Missouri Constitution or statutory changes.  One of the types of referendums is what is sometimes referred to as a “citizens’ veto” — recently used on a “right to work” bill.  As relevant to the abortion law, if groups opposed to a bill manage to get sufficient signatures before August 28, the bill does not take effect until it is submitted to a vote of the people (typically at the next general election although the governor can schedule it for a vote on any official election date such as the presidential primary in March, the municipal election in April, or the primary election in August).

Under Missouri law, before a group can circulate a petition, they must get approval of the form of the petition, and there are several steps to this process (at which a dedicated opponent of the petition can delay approval).  First, the Secretary of State must forward the proposed petition to the Attorney General for review of the form.  Second, the Attorney General has ten days from receipt of the petition to give his opinion regarding the form to the Secretary of State.  Third, the Secretary of State has fifteen days from receipt of the petition to approve the form.  Fourth, if the Secretary of State approves the form, he then has twenty-three days to prepare a ballot title that concisely (less than one hundred words) and fairly and accurately describes the proposal.  Fifth, the Attorney General then has ten days to approve or revise the ballot title.  It is only once the ballot title is approved that the petition can be circulated.

There is one other catch.  Past cases bar a citizen’s veto referendum on a bill that has a valid emergency clause (i.e. a bill that has already taken effect in part).  In Missouri, the Secretary of State used this provision to prevent the circulation of the petition (i.e. he rejected it as to form).  This past week, the Missouri appellate courts’ overturned the rejection of the petition.  Essentially, the courts held that at the rejection as to from stage, the Secretary of State is limited to whether the proposed petition complies with the requirements as to the form of the petition and is not considering the merits of the petition.  However, this decision only covers the first part of the approval process.  Assuming that the Secretary of State complies with the court’s orders (and the formal appellate order was only issued on Friday and the trial court will probably not enter its judgment based on that order until sometime this week), the approval of the ballot title could be delayed until approximately August 14-19.  That would leave almost no time to challenge an unfair ballot title or to circulate the final version of the petition before the August 28 deadline.

Even if the opponents of this law can get enough signatures by August 28, there would still be the issue of whether a citizens’ veto of House Bill 126 is viable.  The legal issue is whether the conclusion of the legislature that there was an emergency is binding on the courts in finding that the provision of the Missouri Constitution barring a referendum on emergency legislation applies.  This past week’s opinion holds that such an issue is for a later stage of the process, not the circulation approval stage.  So this issue will likely arise with the Secretary of State refusing to certify this issue for the ballot.

Given the ruling by the appellate courts, the next stage in Missouri will be that mid-August deadline for approval of the ballot title.  It has pretty much become the norm for proponents and opponents of a referendum to disagree about the fairness of the ballot title and to go to court to contest the title.  Even assuming that the opponents of House Bill 126 attempt to get enough signatures with only ten days to circulate the petition, I would also anticipate the filing of a case in federal court to get an injunction against the new law.  It is possible — given the standard that governs the granting of an injunction that the courts will issue an injunction that only covers some of the provisions.  As is typical in this type of bill, some of the provisions are based on laws in other states that have been upheld and others are “pushing the envelope” in an effort to get the courts to approve additional restrictions on abortion.  Courts tend to deny injunctions on provisions that have been approved by other courts and to grant injunctions on provisions that seem to cross the line into territory that has previously been held to be invalid.

Given prior decisions, I would expect that — at least for the absolute ban, the eight-week ban, and the fourteen-week ban — the Eighth Circuit (and other courts around the country facing similar laws) will find that such prohibitions on doctors performing abortion is a “substantial burden” on a woman’s ability to get an abortion (the current standard set by the United States Supreme Court).  At that point, the Supreme Court will have to decide whether to face this issue.  That point, however, will not be reached for two to three years from now.

Of course, there is the Louisiana abortion case in which the Supreme Court issued a stay earlier this year.  Currently, both sides have filed cross-petitions but the responses are not due until later this summer.  As such, this case will be one of many on the docket for the “long conference” at the start of the new Supreme Court term.  At that time, the Supreme Court will have three basic options — take the case for full briefing, issue a summary opinion telling the Fifth Circuit to follow the recent opinion dealing with the similar law from Texas, or decline to take the case.  Given the recent changes in the membership on the Supreme Court, it is possible to make a plausible argument for each of these alternatives.  Of course, if the Supreme Court were to take the Louisiana case in the fall, the decision would be issued in May or June, just in time to place abortion at the center of the 2020 presidential election.

The fact that this issue is still alive as we near the 50-year anniversary of Roe is a reminder that elections matter.  The opponents of abortion have done a better job of internalizing that this right depends on the composition of the judiciary and that the best way to change the composition of the judiciary is to elect presidents who will appoint anti-abortion justices.  And, for them, at least, abortion is a voting issue.  Those who depend on the judiciary to protect their rights have been less likely to make the courts a voting issue.  The result has been the slow erosion of abortion rights.  And, until progressives decide that protecting the courts from conservative activism matters, this erosion will continue.  Democrats need to win the White House and Senate in 2020 so that we are not faced with a situation like the first Bush administration when liberal champions like Justice Thurgood Marshall were replaced by ultraconservatives like Justice Clarence Thomas.  And we will need to continue winning elections so that conservatives are not able to preserve their current artificial majority on the court by timely retiring.