Posted on 11/17/2005 8:25:28 PM PST by Graybeard58
A new Missouri law that limits abortions is constitutional, but only with judicial limitations that protect free speech, a Jackson County judge ruled Thursday.
Circuit Judge Charles Atwell also ordered an injunction that prohibits enforcement of the law pending a ruling by a higher court. Lawyers say the case will go directly to the Missouri Supreme Court.
The law would expose people to civil lawsuits if they “intentionally cause, aid, or assist” girls under 18 to get an abortion without parental consent or without a court order waiving the requirement.
The new law allows civil lawsuits against offenders who also could be charged with a misdemeanor for violating a separate Missouri consent law.
In Missouri, abortions are provided only in Boone County, St. Louis County and St. Louis. Girls often go to Kansas or other states for the procedure. Kansas does not require parental consent but does require parental notification.
In his ruling, Atwell said the new law would unconstitutionally violate free speech rights for people who counsel and provide information to girls — unless the law is interpreted the way he says it should be.
Under his interpretation, a defendant must know about the Missouri consent law, know that the girl is attempting to violate it and know that she is indeed a minor. Also, the girl must actually get an abortion without parents’ consent.
Atwell also clearly states that the law does not apply to a person who only provides counseling or information.
With those changes, he wrote, “the court, with substantial trepidation, finds that (the law) is constitutional.”
Gov. Matt Blunt said he was pleased with the ruling.
“I was confident when I signed this good pro-life law that it would withstand Constitutional scrutiny and reduce the number of abortions in our state,” Blunt said in a written statement.
Atwell, who chairs a state committee that reviews and writes jury instructions for the Missouri Supreme Court, also wrote that it is still a very close call on whether the law is unconstitutional.
In the order, he asked whether his interpretation was “a legitimate act of judicial interpretation or does it constitute a rewriting (of the law) infringing upon the powers clearly invested in the legislative branch?”
The Missouri Supreme Court will have to decide that and many other issues.
Plaintiffs in the case, which include Planned Parenthood operations in Missouri and Kansas, contended the law was unconstitutional on many other grounds as well. Among them, they contended the law was too vague, violated rights of children and violated interstate commerce rights.
Atwell rejected those arguments but noted the high court could see any of them differently.
In his ruling, Atwell gave an extended example of how jury instructions would work in a fictional case with a girl he called S.J.
He said a civil suit would be won if:
The defendant drove S.J. from Kansas City to an Overland Park clinic in Kansas; and that the defendant knew that S.J. was under 18; and that the defendant knew that S.J.’s intended to obtain an abortion there.
In addition, S.J. must have gotten the abortionl Plus, the defendant must have know that S.J. lacked parental consent and that it was unlawful for a minor in Missouri to obtain an abortion without parental consent.
His ruling also made clear the intense free-speech concerns that Atwell has repeatedly raised in hearings on the case.
“Freedom of speech is a key benchmark that separates us as Americans from the rest of the world,” he wrote. “The issues in this case are much broader than a woman’s right to an abortion….”
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