In the latest setback to Missouri's already restrictive anti-abortion measures, state Attorney General Josh Hawley may soon have the authority to prosecute violations of abortion law in Missouri, thanks to a new bill passed by the State Senate this month. There is already only one abortion clinic left in the state, and Hawley is a fierce anti-abortion advocate; he served as co-counsel for the 2014 Supreme Court case of Sebelius v. Hobby Lobby Stores Inc., which ruled that private companies are not required to provide contraceptive coverage to their employees.
Critics of the new bill, SB 5, are concerned that Hawley's potential new powers are a legal overreach and could further endanger women's reproductive rights in the state. If passed, he would have the power to enforce and prosecute any abortion law in Missouri — including the ability to close the state's only clinic for a year if he deems it to be in violation of the law.
It's important for us to protect life, to defend life and to promote a culture of life.
SB 5 was introduced during a special session called by Republican Gov. Eric Greitens in June to strengthen his state's abortion laws and protect pregnancy crisis centers, or "fake" providers which lure women into their facilities under the pretense that they will provide medical consultations yet offer no information on abortion and contraceptives.
"It's important for us to protect life, to defend life and to promote a culture of life," he said to the St. Louis Review, a publication from the Archdiocese of St. Louis. "With the special session... we're going to be protecting our pregnancy care centers and proposing common sense health and safety standards for the people of Missouri."
While the Senate version of the legislation only granted prosecutorial powers to the attorney general if local prosecutors didn't act, the House bill expanded Hawley's authority. Its bill stated the attorney general will have the authority to enforce and prosecute the state's abortion laws, without notifying local prosecutors. Other amended measures in the House bill includes changes to the state's definition of an abortion facility and permission for the state health department to conduct unannounced, on-site inspections and investigations of abortion facilities.
Hawley is staunchly anti-choice, and in 2016, while running for the attorney general's office, told the pro-life publication LifeSiteNews.com that "abortion is not a right. It is a violent act against the defenseless. It violates every principle of morality and should be barred by American law."
The bill is now on its way back to the Senate for further review, to address the changes made by the House. Alison Dreith, executive director of NARAL Pro-Choice Missouri, tells Bustle that her biggest concern is that if the provision were enacted, and if any violations were found against St. Louis' Planned Parenthood during these inspections, Hawley would shutter the facility. Currently, his attorney general role only permits prosecution of crimes related to violations in the state's consumer-protection law and some gambling laws.
If our state was left without any abortion services at all, we’ll be taken back to the pre-Roe era.
“When restaurants get inspected by the department of health and there is a violation, they don’t automatically get shut down, they work to make those improvements,” Dreith says. “The original language for this wouldn’t even allow for a plan for the facility to come back up to law or code, it would just shut them down for 12 months.”
Without an abortion clinic in the state, women would be forced to travel across state lines to seek treatment or pursue illegal operations. Dreith says Missouri is already the third most restrictive abortion state in the country, with over 30 anti-abortion laws in place. For instance, women must wait 72 hours before receiving an abortion and a woman eligible for state medical assistance may not obtain public funds for an abortion unless it’s necessary to preserve her life.
Abortion opponents say the provision is necessary because they are wary that local prosecutors who support abortion rights will not prosecute abortion law violations as stringently as they should.
"It doesn't give the attorney general the power to get ahead of the prosecutor, it allows both of them to pursue an abortion violation as their offices deem fit," adds Tom Estes, a staffer for Republican Sen. Andrew Koenig, who led the effort for increased power for the state's attorney general. "Senator Koenig is pro-life, he believes in it deeply and anything he can do to push forward a pro-life message, he's going to be deeply motivated to do that," Estes tells Bustle.
In 2014, 5,130 abortions were provided in Missouri, even though 99 percent of counties had no clinics which offered the procedure, according to the Guttmacher Institute. Between 2011 and 2014, there was a 12 percent decline in abortion rates in the state.
Missouri only has one clinic and the average Missouri woman already has to drive 150 miles to get abortion care.
“Missouri only has one clinic, and the average Missouri woman already has to drive 150 miles to get abortion care,” Dreith says. “So if our state was left without any abortion services at all, we’ll be taken back to the pre-Roe era.”
While Hawley would be given new powers of prosecution from the bill, it's not completely unprecedented for attorneys general to have sweeping oversight. Attorneys general in Alaska, Connecticut, Delaware, and Rhode Island can prosecute any criminal case, according to the National Conference of State Legislatures (NCSL). However, Marjorie Tharp, spokesperson for the National Association of Attorneys General, tells Bustle that she is not aware of any other states which explicitly give the attorney general authority over abortion law.
The specific language of the bill would give Hawley "concurrent original jurisdiction throughout the state, along with each prosecuting attorney and circuit attorney with their respective jurisdictions, to commence actions for any violation of the state's abortion laws."
Amber Widgery, a policy specialist with the NCSL's Criminal Justice program, explains to Bustle what this means: "It's no different than like a bank robbery prosecuted at both the federal and at the state levels, and that's concurrent prosecution and there's no loss of power for one or the other. They both still have their own autonomous right to prosecute. If abortion were a criminal offense, in these four states, it would be prosecuted by the attorney general at the state level."
We can only assume he will be relentless...
Carole Joffe, a professor at the Bixby Center for Global Reproductive Health at the University of California, San Francisco says it is absurd to place so much power in the hands of a man already deeply opposed to abortion.
“We can only assume he will be relentless in his prosecution of any alleged infraction of the law by abortion providers, so it’s very worrisome,” Joffe tells Bustle. “What’s happening in Missouri is just symptomatic of how difficult abortion access will be and how much legal scrutiny will be on providers.”
The legislation is still being debated and won't be revisited until after the July 4 recess. Hawley's office did not return Bustle's request for comment.
“It's really scary that we could go so far back with these attorney general regulations and potentially outlaw abortion or stop abortion in our state," Dreith says, "Because I know women are going to die from that.”