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In 2005, the Missouri legislature enacted a statutory provision that created civil liability for any person that intentionally caused, aided, or assisted a minor child to obtain an abortion without the consent required by Missouri law.1 The civil cause of action created by the statute is available to both the minor child and to any person required to give his/her consent under Missouri law.2 Generally, in the absence of consent by court order, an attending physician is required to secure the informed consent of the minor child and one parent or guardian prior to performing an abortion in Missouri.3

The potential civil liability of those violating this statute as written is substantial. The damages available to an aggrieved party are defined to include “compensation for emotional injury without the need for personal presence at the act or event.”4 Additionally, the statute expressly permits an award of “attorney’s fees, litigation costs, and punitive damages.”5 Furthermore, the civil liability created by the statute as written is far-reaching in that it expressly denies any defense based on compliance with the laws and consent required by a different state or place where an abortion is performed or induced.6 As a result, the civil liability created by Section 188.250 as written extends not only to abortion providers located inside the state of Missouri but also to persons providing abortions to Missouri minors outside the state that fail to comply with Missouri law.

Planned Parenthood of Kansas (hereinafter “Planned Parenthood”) challenged the constitutionality of the by Matthew J. Brooker statute based primarily on the First Amendment, the Commerce Clause, the assertion that the statute imposed on undue burden on a minor’s ability to obtain an abortion, and the assertion that the statute infringed upon a minor’s right to travel. Jackson County Circuit Judge Charles Atwell narrowly construed the statute by holding that it did not apply to speech or expressive conduct, and otherwise upheld the statute in all other respects.7

Appeal was taken directly to the Missouri Supreme Court.8 After determining that Planned Parenthood had standing to challenge the statute and that the case was ripe for review, the Missouri high court unanimously upheld the statute, after narrowly construing it not to apply to speech or expressive conduct or to wholly out-of-state conduct.9 While the court upheld the statute, however, the narrow construction applied by the court limited the statute’s application and relieved out-of-state abortion providers from the civil liability they would have otherwise been subjected to by the statute, as written by the Missouri legislature.

First Amendment

Planned Parenthood argued that the phrase “aid or assist” impermissibly banned protected speech. The organization claimed that it engaged in protective speech when providing information and counseling to minors about pregnancy options, including abortion. While Missouri Supreme Court agreed that such conduct was protected speech, it elected to narrowly construe the statute rather than to invalidate the statute.10

Before electing to narrowly construe the statute, the supreme court examined whether a narrow construction would be inconsistent with legislative intent. The court determined that the legislature sought to ban every form of aid and assistance, and did not “solely target speech or expressive conduct,” and that a narrow construction would thereby not violate the intent of the legislature.11 As a result, the court construed the terms “aid” and “assist” to exclude the provision of counseling or information to minors. So construed, the court held that the statute did not violate the First Amendment or the comparable free speech guarantee of the Missouri Constitution.

Commerce Clause and Due Process

Planned Parenthood argued that the statute violated the Commerce Clause by requiring non-Missouri health care providers and others engaged in conduct wholly outside Missouri to comply with the Missouri consent law before aiding or assisting a Missouri minor in obtaining an abortion outside of Missouri. When addressing this argument, the court stated unequivocally that “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect.”12

The court thereby concluded that the statutory provision found in Section 188.250.3, which prohibited the assertion of a defense based on compliance with the consent and/or state law where an abortion is performed, did not apply to “wholly out-of-state conduct.”13 As a result, by once again adopting a narrow construction, the high court limited the statute’s application to conduct occurring within the state of Missouri. This narrow construction prevented the statute from creating civil liability for abortion providers outside the state. As a result, the statute’s applicability as written was much broader than the statute’s applicability as construed by the court.

Undue Burden

Planned Parenthood argued that Section 188.250 imposed an undue burden on a minor’s ability to obtain an abortion based on the holding in Planned Parenthood of Se. Pa. v. Casey,14 which prevents states from passing laws “that place a substantial obstacle in the path of a woman seeking an abortion.”15 At the time of the circuit court hearing, evidence established that abortions were only provided in the following Missouri counties: Boone County, St. Louis County, and the City of St. Louis.16 Planned Parenthood argued that Section 188.250 imposed an undue burden on a minor seeking to obtain an abortion by requiring her to choose between (1) driving long distances to obtain an abortion inside the state of Missouri and (2) obtaining two judicial bypasses (one in Missouri and one in the state where the abortion was going to be performed).17 Additionally, Planned Parenthood argued that minors seeking to obtain an abortion without parental involvement are often accompanied by a trusted adult, and that the statute’s prohibition of aiding or assisting a minor in obtaining an abortion without parental consent would make it difficult for such a minor to find a trusted adult willing to subject themselves to potential civil liability.18

The Missouri Supreme Court concluded that Section 188.250 did not impose an undue burden on minors seeking abortions in Missouri. First, it noted that the U.S. Supreme Court had previously approved Missouri’s parental consent statute,19 and that other parenting consent statutes with judicial bypass provisions had been routinely upheld.20 Second, it rejected the notion that minors would ever be required to obtain two judicial bypasses from different states, or that trusted adults would be deterred from helping minors in obtaining abortions outside of Missouri. In reaching this conclusion, the court reiterated its holding that the statute did not apply to wholly out-of-state conduct.21 Finally, the court determined that the distance a minor must travel to obtain an abortion is not prescribed by the statute, and that Missouri has an interest in adopting its own abortion regulations, and is not limited by the regulations adopted in other states. The court thereby concluded that Section 188.250 did not impose an undue burden on minors seeking abortions in the state of Missouri.

Right to Travel

Planned Parenthood argued that Section 188.250 violates a minor’s right to travel. The Missouri Supreme Court explained that the right to travel is composed of three components: “(1) the right of a citizen of one State to enter and to leave another State, (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”22 Planned Parenthood argued that the statute violated the first two components of the right to travel.

The court found that Section 188.250 did not violate the rights of minors to enter or leave Missouri because it did not impose any obstacles upon minors entering or leaving the state. Because of the high court’s narrow construction of the statute, minors are not required to obtain parental consent to obtain out-of-state abortions, and minors are not forbidden from obtaining out-of-state abortions.23 Furthermore, the court held that minors are not improperly deprived the assistance of adults because the statute does not ban adults from accompanying minors but instead requires that all persons aiding or assisting the minor comply with the parental consent laws of Missouri.24

Likewise, the supreme court found that Section 188.250 does not violate the rights of minors to be treated as welcome visitors rather than as unfriendly aliens when temporarily present in Missouri. The court reached this conclusion because the statute does not treat non-Missouri residents differently from Missouri residents.25 The statute requires that all minors seeking an abortion within Missouri comply with the same rules and requirements before obtaining an abortion.

Conclusion

The unanimous ruling in Nixon is merely the beginning of the litigation storm brewing over legislative enactments aimed at limiting abortions by the Missouri legislature. While the statute ultimately survived the Missouri Supreme Court’s ruling, it was construed narrowly to prevent its application to conduct occurring outside the state of Missouri or to conduct constituting protected speech.

* Matthew Brooker is a graduate of the University of Missouri-Kansas City School of Law, and an attorney at the law firm Cochran, Oswald & Roam, LLC in Blue Springs, Missouri.

 

Endnotes

1 R.S.Mo. § 188.250 (2005). See S.B. 1, 93rd General Assem., Special Sess. (Mo. 2005), available at http://www.senate.mo.gov/05info/billtextS1/tat/SB1.htm (last viewed 9/07/07).

2 R.S.Mo. § 188.250.2. However, this section prohibits an award of damages to any adult that engages in or consents to another person engaging in a sex act with a minor child that results in the minor’s pregnancy in violation of chapters 566 (sexual offenses), 567(prostitution), 568 (incest), or 573 (pornography).

3 R.S.Mo. § 188.028.

4 R.S.Mo. § 188.250.2.

5 Id.

6 R.S.Mo. § 188.250.3.

7 Specifically, the circuit court held that the statute “cannot constitutionally reach the giving of information or counseling regarding the reproductive rights and options of minors.” Planned Parenthood of Kansas v. Nixon, 220 S.W.3d 732, 736 (Mo. 2007) (en banc).

8 The Missouri Supreme Court has exclusive appellate jurisdiction in determining the validity of a Missouri statute. Mo. Const., art. V, sec. 3.

9 Nixon, 220 S.W.3d 732.

10 Id. at 741-42. The Court noted that applying a narrowing construction to a statute is the preferred remedy in First Amendment cases rather than invalidating the statute in its entirety.

11 Id. at 741.

12 Id. at 742. Noting that in Bigelow v. Virginia, 421 U.S. 809, 82728 (1975), Virginia had no police powers over conduct that occurred outside its border and had a very limited interest in regulating what Virginians heard or read about abortion services in New York.

13 Id. at 743.

14 505 U.S. 833, 876-77 (1992).

15 Nixon, 220 S.W.3d at 743.

16 Id. The closest abortion provider in the western part of Missouri was located in Kansas City, Kansas. The Court noted that in Kansas a minor must give her parents notice of her intent to have an abortion or obtain a judicial bypass and that she must be accompanied by an adult when getting an abortion. However, in Illinois, there are no parental consent or judicial bypass requirements. Id.

17 Id. at 743. Planned Parenthood argued that a minor in Kansas City, Missouri desiring to obtain an abortion without involving her parents would have to choose between either (1) getting a judicial bypass in Missouri and driving to Columbia or St. Louis or (2) obtaining a judicial bypass in Missouri and obtaining a judicial bypass in Kansas. Id.

18 Id. The statute on its face appears to have been intended to have the effect of reducing the willingness of persons to assists minors in obtaining abortions without parent consent through the imposition of civil liability.

19 Id. (citing Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-93 (1983) (upholding R.S.Mo. § 188.028)).

20 Nixon, 220 S.W.3d at 744 (citing Casey, 505 U.S. at 899-900, and Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 518-20 (1990)).

21 Id. The Court specifically indicated that Section 188.250 does not apply to adults aiding or assisting minors in obtaining abortions “if or once those minors are not in Missouri.” Id.

22 Id. (citing Saenz v. Roe, 526 U.S. 489, 500 (1999)).

23 Id. at 744.

24 Id. at 744-45.

25 Nixon, 220 S.W.3d at 745.

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