a bird and a bottle

A Partial Victory for Abortion Rights in Missouri
May 2, 2007, 9:17 am
Filed under: civil rights, feminism/s & gender, law, news, reproductive justice, sexuality

update: to be clear, the Court, while narrrowly reading this section, upheld a law requiring minors in Missouri to obtain parental consent before procuring an abortion.


According to the American Constitution Society, the Missouri Supreme Court yesterday agreed with Planned Parenthood that a state law violated the organization’s First Amendment rights.

Missouri state law provides that no one may “cause, aid, or assist” a minor in receiving an abortion without either parental consent or judicial bypass of the state’s parental consent law. Planned Parenthood challenged the law as restricting its First Amendment ability to provide to young women information about abortion. The Court did not strike down the law, instead reading it narrowly so that to “cause, aid, or assist” a minor does not include speech or conduct that the First Amendment protects. The Court held:

In order to uphold the statute as not violative of the First Amendment, the phrase “aid or assist” in section 188.250.1 is construed to exclude speech or expressive conduct. In this way, the phrase “aid or assist” does not include the provision of information or counseling, but does include conduct that is not considered speech.

What this means – in non-lawyer speak – is that the Missouri Supreme Court read out of the statute the inclusion of speech that the First Amendment protects (counseling and information) while upholding the statute’s constitutionality.

This isn’t the first time a court has considered a First Amendment argument in connection to abortion rights. In Rust v. Sullivan, the Supreme Court upheld a law and federal regulation that prohibited clinics receiving federal funds (under Title X, the federal government’s only funding stream for reproductive healthcare) “from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records.”

I don’t think that the Missouri decision will have a wide effect. But it is interesting to see this flurry of new litigation about abortion, particularly at a time where we have a Supreme Court that is more hostile than ever since Roe to a woman’s ability to control her reproductive future. Certainly, this Missouri case was pending before Gonzales v. Carhart was decided. I bet we’re going to see a whole lot more like this.


8 Comments so far
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Did the court say it was constructing the statute to avoid an unconstitutional or likely unconstitutional reading, or did it say it was construing to avoid raising the question of constitutionality at all? It seems like that distinction could mean a lot for the durability of the decision.

Comment by aeroman

In a way, the same reading out happened in Gonzales v. Carhart. One of the objections to the D&X ban was that it was broadly construed and could ban not just intact D&X, which is a very rare procedure, but also D&E, which is the standard method used in most of the second trimester. Kennedy then said that the ban could not be read to include D&E, only D&X.

Comment by Alon Levy

Right, Alon, this is a common thing to do, but the issue is that there’s more than one rationale for it, and which rationale you use is going to effect how safe your holding is, especially if you’re a state court focusing on a right protected by the federal constitution.

The first would be to invoke the canon of construing statutes to avoid unconstitutionality. This rationale is weak because it collapses as soon as the constitutionality question is resolved against you (if it is).

The second would be the canon of constitutional avoidance, which reads ambiguous statutes to avoid even forcing courts to address constitutional questions. Going this route doesn’t hinge on the right actually existing or being infringed – just the fact that, at the time of litigation, a broader construction would have forced the court to address it. That’s not a fact that can be changed by subsequent rulings.

Probably the safest thing a state supreme court could do would be to simply adopt a general policy of narrowly reading any case that burdens the exercise of a constitutional right. This would take the FA inquiry out of the question altogether, and simply resolve any ambiguity in an abortion statute in favor of the narrowest plausible reading.

So, anyway, narrowly reading a statute to duck a constitutional issue is par for the course. But the grounds for doing so can make a good deal of difference.

Comment by aeroman

Also, even those three options have less and more safe versions, depending on your underlying rationale for choosing the rule you do. For example, the canon of constitutional avoidance might be a rule of imaginative reconstruction that assumes that legislators also want to avoid constitutional questions. If this is the case, subsequent precedents on the constitutional issue are irrelevant, because you can just point to your determination of original intent. However, the canon of constitutional avoidance might be a prudential rule, not a rule for reconstructing legislative intent. If that’s the case, you lose that option and can only hide behind stare decisis later on.

But then, it’s still stronger than a holding that hinged on assuming the actual unconstitutionality of the alternative construction, because an attempt to maintain that holding couldn’t even appeal very convincingly to stare decisis following a federal determination of the scope of the constitutional right. More likely, the case would just seem wrongly decided.

Comment by aeroman

aeroman – here’s what the court said (from the syllabus):

The statute does not violate the First Amendment because the phrase “aid or assist” in [the statute] is given a narrowed construction to exclude speech or expressive conduct. Planned Parenthood’s provision of information and counseling is core protected speech. In First Amendment cases, a narrowing construction is the preferred remedy so that a challenged statute can be construed in harmony with the constitution and, therefore, upheld. To pass constitutional muster, section 188.250 need not be invalidated in its entirety; rather, it may be upheld by a narrowing construction of its terms “aid or assist” to exclude providing information or counseling. In this statute, the legislature – which is presumed not to pass unconstitutional laws – bans all aid and assistance and does not target speech and expressive conduct solely. By construing “aid or assist” not to include the protected speech involved in providing information and counseling, it continues to apply to conduct that is not considered speech.

Looks to me like the court was constructing the statute so as to avoid a constitutional violation. Do you agree?

And how was Fed Courts? Or has it not been yet? I am dreading that class next year….

Comment by bean

Bean, I think that’s the right reading of what they’re saying. Thanks for the excerpt!

No Fed Courts exam for a while…we’re still in classes, even. Our schedule is really off from most for some reason.

Comment by aeroman

You’re at YLS (I think HLS is late too)? I was an undergrad resident of the fair Elm City. Anyway, good luck whenever they are…

Comment by bean

Yes, I’m at the law school that gave the world Pat Robertson, Joe Lieberman, and John Bolton. Very exciting.

Thanks for the well wishes.

Comment by aeroman

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