Section 188.026

Title XII PUBLIC HEALTH AND WELFARE

Chapter 188

Effective - 28 Aug 2019   

  188.026.  Missouri Stands for the Unborn Act — findings of general assembly — interests of the state of Missouri. — 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;

  (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);

  (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 gestational age, the unborn child's heartbeat can consistently be made audible through the use of a handheld Doppler fetal heart rate device;

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

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

  (10)  The Supreme Court in Roe discussed "the difficult question of when life begins" 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, and the ability to experience pain;

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

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

  (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;

  (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;

  (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, in the 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 gestational age.  Enkephalins, peptides that play a role in neurotransmission and pain modulation, are present in the dorsal horn at twelve to fourteen weeks gestational age;

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

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

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

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

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

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

  (26)  Missouri's ban on the partial birth abortion method, section 565.300, is in effect because of Gonzales v. Carhart and the Supreme Court's subsequent decision in Nixon v. Reproductive Health Services of Planned Parenthood of the 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 exception;

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

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

  (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;

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

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

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

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

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

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

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

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

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

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

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

  (b)  Unborn children at later stages of development;

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

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

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

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

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

  5.  The state of Missouri has interests that include, but are not limited to:

  (1)  Protecting unborn children throughout pregnancy and preserving and promoting their lives from conception to birth;

  (2)  Encouraging childbirth over abortion;

  (3)  Ensuring respect for all human life from conception to natural death;

  (4)  Safeguarding an unborn child from the serious harm of pain by an abortion method that would cause the unborn child to experience pain while she or he is being killed;

  (5)  Preserving the integrity of the medical profession and regulating and restricting practices that might cause the medical profession or society as a whole to become insensitive, even disdainful, to life.  This includes regulating and restricting abortion methods that are not only brutal and painful, but if allowed to continue, will further coarsen society to the humanity of not only unborn children, but all vulnerable and innocent human life, making it increasingly difficult to protect such life;

  (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 nonabortion 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.

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(L. 2019 H.B. 126)