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Editorial: Missouri bill mimics Texas' bounty hunter scheme to attack abortion rights

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Missouri State Capitol

The Missouri State Capitol building

Even as the U.S. Supreme Court ponders what to do with Texas’ restrictive new anti-abortion-rights law, a Missouri legislator has filed a bill that would mimic it here — complete with an enforcement mechanism that tries to circumvent constitutional issues by inviting random private citizens to sue abortion providers at will. That mechanism, which even conservative Chief Justice John Roberts has derided as “a bounty hunting scheme,” would set a dangerous precedent on issues far beyond abortion.

The Missouri bill by Rep. Mary Elizabeth Coleman, R-Arnold, uses the same standard as the Texas bill, declaring abortion illegal as soon as a heartbeat is detectable in an embryo. That effectively outlaws abortion after about six weeks of pregnancy, a point at which many women don’t even know that they are pregnant.

The heartbeat standard directly challenges Roe v. Wade, which set a viability standard — that is, the point at which a fetus would be able to live outside the womb. That’s generally at about 24 weeks or more into a pregnancy. The viability standard was an attempt to balance the rights of the woman with the difficult question of when a fetus becomes a person.

The Texas law and the Missouri bill both toss out that balancing act in favor of the heartbeat standard, which may be emotionally potent but is medically irrelevant. The heartbeat starts before an embryo even becomes a fetus, let alone a fetus developed enough to live outside the womb.

Outlawing abortion that early in the pregnancy would effectively deny many women the right to even make the choice, since they might not know they are pregnant until after the heartbeat is detectable. Poor women with limited resources would be the main victims (as they were before Roe) if individual states are allowed to effectively ban the procedure.

Abortion is a complicated and difficult issue with valid arguments on both sides. But there’s no validity to the civil-litigation enforcement mechanism used in the Texas law and the Missouri bill. It is nothing but a clever end-run around the constitutional protection of abortion rights that, for the moment, still exists.

Normally, when state officials attempt to enforce a blatantly unconstitutional law, opponents can easily challenge that law on constitutional grounds. But by declining to use the state’s power to enforce the law, while inviting random activists to do it via harassment lawsuits, this setup complicates such constitutional challenges. California Gov. Gavin Newsom recently demonstrated the absurdity of this scheme when he suggested the same standards should allow anyone to sue gunmakers, even if they aren’t victims of gun violence.

The issue of abortion rights is among America’s great debates today — but this legislative sleight of hand isn’t a valid part of that debate. It’s just a cynical stunt that its promoters may regret when it spreads to other issues.

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