JEFFERSON CITY — The Missouri public defenders office says taxpayer-paid attorneys could soon face the prospect of defending poor women charged with felonies for knowingly performing or inducing their own abortions.
The public defenders office comptroller, in an email obtained by the Post-Dispatch, said an anti-abortion law set to take effect Aug. 28 would have “an unknown but significant fiscal impact” on the state public defender system. The office says it is critically understaffed, receiving $52 million this year from a $30 billion state budget.
Gov. Mike Parson, a Republican, signed the measure in May. The law bans abortions at eight weeks of pregnancy, except in medical emergencies. Opponents have argued the legislation opens women to felony charges if they visit out-of-state clinics to undergo pill abortions, which are nonsurgical and are completed at home.
In 2017, the last full year when pill abortions were offered in Missouri, there were 274 such procedures for women who were at eight weeks of pregnancy or later, according to state Department of Health and Senior Services statistics.
“If I live in Sikeston (Missouri) and I go to Illinois, get my pills, and then take my pills in Missouri, I think I could be prosecuted under this,” Rep. Gina Mitten, D-Richmond Heights, who is a lawyer, said in May.
The public defenders office assumed no financial impact from the proposal when legislators debated it this spring, but Michael Barrett, director of the public defenders office, said the agency revised its analysis this summer.
The law “creates a new Class B felony for ‘any person who knowingly … induces an abortion of an unborn child … ,’ which arguably would include post-conception contraception,” K. Kathleen L. Lear, the public defenders office comptroller, wrote in a memo sent June 13 to the office of state Auditor Nicole Galloway.
“If so, this would result in the prosecution of an unknown but significant number of indigent women throughout the state which would require representation by the State Public Defender System,” Lear said. The Post-Dispatch requested the document on Thursday from the auditor’s office.
“(A)s a result of excessive caseloads,” Lear said, “the Office of the State Public Defender CANNOT assume existing staff will provide competent, effective representation for any new cases where indigent persons are charged with the proposed new crime of knowingly performing or inducing an abortion of an unborn child.”
Republican sponsors of the law have rejected the idea that women could be charged with class B felonies, which carry potential sentences of five to 15 years in prison, for performing or inducing their own abortions.
“I think it’s a pretty big reach to try to read that in a way that says the woman would be liable,” Rep. Mary Elizabeth Coleman, R-Arnold, a lawyer who helped draft the law, said in May.
Steele Shippy, Parson’s former office spokesman who now manages his 2020 campaign, said then that “it is our understanding that HB 126 does not provide for any criminal penalties against a woman receiving an abortion.”
Shippy provided no legal analysis from the governor’s legal counsel to back up the claim.
A Jefferson City lawyer who reviewed the legislation for the Post-Dispatch disagreed with the governor’s office. (After he offered his analysis, the lawyer worked on an unsuccessful attempt to overturn the law through an initiative petition.)
“My opinion is that there are circumstances in which it is at least possible that a woman could be charged with a felony,” said Lowell Pearson, a Husch Blackwell managing partner who has represented a number of Republican clients, including U.S. Sen. Josh Hawley of Missouri.
The law says: “Any person who knowingly performs or induces an abortion of an unborn child in violation of this subsection shall be guilty of a class B felony, as well as subject to suspension or revocation of his or her professional license by his or her professional licensing board.”
“When you read the language, it’s clear that there’s no penalties except for those who cause an abortion to be induced or performed,” Coleman said, referring to the doctors or nurse practitioners who perform the procedure.
The law goes on to say that a “woman upon whom an abortion is performed or induced in violation of this subsection shall not be prosecuted for a conspiracy to violate the provisions of this subsection.”
“To be abundantly clear, there’s another sentence immediately following that says a woman shall not be charged with conspiracy,” Coleman said.
But an exemption for conspiracy charges would not necessarily exempt a woman who performs an abortion on herself from felony charges of knowingly performing or inducing an abortion, the public defenders office said.
“If this was not the drafter’s intent, they should clear it up,” Barrett said. “We stand by that email.”
A federal judge in Kansas City has scheduled a hearing for Aug. 26 on a lawsuit by Planned Parenthood of the St. Louis Region challenging the law. The judge could halt the law’s implementation as the lawsuit works through the appeals process.