Section 188.039

Title XII PUBLIC HEALTH AND WELFARE

Chapter 188

Effective - 10 Oct 2014, 4 histories, see footnote   (history) 

  *188.039.  Seventy-two hour waiting period for abortions required — medical emergency exception, definition — informed consent requirements — department to provide model consent forms — waiting period restrained or enjoined, effect of. — 1.  For purposes of this section, "medical emergency" means a condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.

  2.  Except in the case of medical emergency, no person shall perform or induce an abortion unless at least seventy-two hours prior thereto the physician who is to perform or induce the abortion or a qualified professional has conferred with the patient and discussed with her the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure and the use of medications, including but not limited to mifepristone, in light of her medical history and medical condition.  For an abortion performed or an abortion induced by a drug or drugs, such conference shall take place at least seventy-two hours prior to the writing or communication of the first prescription for such drug or drugs in connection with inducing an abortion.  Only one such conference shall be required for each abortion.

  3.  The patient shall be evaluated by the physician who is to perform or induce the abortion or a qualified professional during the conference for indicators and contraindicators, risk factors including any physical, psychological, or situational factors which would predispose the patient to or increase the risk of experiencing one or more adverse physical, emotional, or other health reactions to the proposed procedure or drug or drugs in either the short or long term as compared with women who do not possess such risk factors.

  4.  At the end of the conference, and if the woman chooses to proceed with the abortion, the physician who is to perform or induce the abortion or a qualified professional shall sign and shall cause the patient to sign a written statement that the woman gave her informed consent freely and without coercion after the physician or qualified professional had discussed with her the indicators and contraindicators, and risk factors, including any physical, psychological, or situational factors.  All such executed statements shall be maintained as part of the patient's medical file, subject to the confidentiality laws and rules of this state.

  5.  The director of the department of health and senior services shall disseminate a model form that physicians or qualified professionals may use as the written statement required by this section, but any lack or unavailability of such a model form shall not affect the duties of the physician or qualified professional set forth in subsections 2 to 4 of this section.

  6.  As used in this section, the term "qualified professional" shall refer to a physician, physician assistant, registered nurse, licensed practical nurse, psychologist, licensed professional counselor, or licensed social worker, licensed or registered under chapter 334, 335, or 337, acting under the supervision of the physician performing or inducing the abortion, and acting within the course and scope of his or her authority provided by law.  The provisions of this section shall not be construed to in any way expand the authority otherwise provided by law relating to the licensure, registration, or scope of practice of any such qualified professional.

  7.  If the provisions in subsection 2 of this section requiring a seventy-two-hour waiting period for an abortion are ever temporarily or permanently restrained or enjoined by judicial order, then the waiting period for an abortion shall be twenty-four hours; provided, however, that if such temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, the waiting period for an abortion shall be seventy-two hours.

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(L. 1979 H.B. 523, et al., A.L. 1986 H.B. 1596, A.L. 2003 H.B. 156, A.L. 2010 S.B. 793, A.L. 2014 H.B. 1307 & 1313)

*Effective 10-10-14, see § 21.250.  H.B. 1307 & 1313 was vetoed July 2, 2014.  The veto was overridden on September 10, 2014.

(1981) The 48-hour waiting period required by subsection 1 of this section is unconstitutional. The informed consent provision requiring notice to parents and the provisions for informed consent under subsection 2 are unconstitutional.  Planned Parenthood v. Ashcroft, (8th Cir.) 655 F.2d 848.

(1987) United States District Court for the Western District of Missouri Central Division, on March 17, 1987, held that section 188.039 was unconstitutional and the state was permanently enjoined from enforcing this provision.  Reproductive Health Services v. William L. Webster, 655 F.Supp. 1300 (W.D. Mo.). The portion of the order enjoining the enforcement of this section was not appealed.

(2006) Informed consent requirement is not unconstitutionally vague, and twenty-four-hour waiting period does not violate due process clause of state constitution or state constitutional rights to liberty and privacy.  Reproductive Health Services of Planned Parenthood v. Nixon, 185 S.W.3d 685 (Mo.banc).