Of the two Republican candidates officially running for Missouri attorney general next year, neither would respond to repeated questions from the RFT about whether they would prosecute women who terminate pregnancies.
The first post-Roe abortion ban enacted by a state, Missouri's trigger law, which went into effect last June, offers unique wording. In addition to stating that "no abortion shall be performed or induced upon a woman, except in cases of medical emergency," the law includes language that seems to protect women against prosecution.
The law reads: "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."
But despite that language, critics note that the law does not shield women from prosecution for undergoing surgical or self-inducing abortions. A recent op-ed in the Missouri Independent said the question of whether Missouri women could be prosecuted for an abortion was "exceptionally muddled."
Missouri Attorney General candidates Andrew Bailey and Will Scharf did not respond to repeated emails from the RFT asking for their interpretation of the law, or whether they would prosecute women for violating it.
Some people, like longtime pro-life Jefferson City lobbyist Samuel Lee, insist that the law’s language means no woman in Missouri will be prosecuted for getting an abortion.
"Lawmakers wanted to make clear that not only can she not be charged with violating this law, she cannot be charged with violating, by conspiring with someone, to violate this law," Lee says. He adds that when the trigger ban passed in 2019, St. Charles County Prosecuting Attorney Tim Lohmar told lawmakers that he “can’t imagine any prosecutor in their right mind” would prosecute a woman under the law.
And moments after then-Attorney General Eric Schmitt issued the opinion that effectively ended abortion in Missouri, Governor Mike Parson stated the abortion law “protects any woman who receives an illegal abortion from being prosecuted in violation” of the law.
Others aren't so sure. They believe the law leaves the door open for a zealous prosecutor to take action.
"From a legal standpoint, the abortion law only prohibits prosecuting the pregnant woman with conspiracy," says Elad Gross, a St. Louis lawyer currently exploring a run for attorney general. "That's the only thing they won't prosecute her for, but there's not really much protection for a self-induced abortion.”
Representative Sarah Unsicker of St. Louis also fears that’s the case. The Democrat announced last month that she’s “looking at running” for attorney general. She says anyone who induces or performs an abortion would violate state law and could face charges. Performing or inducing an abortion of a fetus could be treated as a class-B felony, she says.
“While a person upon whom an abortion is provided would not be prosecuted for a conspiracy under the subsection, this does not prohibit prosecution for a crime under the same subsection,” Unsicker says. “Thus, according to statute, any person who might knowingly induce or perform an abortion of a fetus” could be charged with a class-B felony.
A conspiracy is an agreement with someone to break the law, not the act of breaking the law itself, Saint Louis University law professor Marcia McCormick wrote in an op-ed in the Post-Dispatch. Conspiring to rob a bank is a crime, but it’s not the same crime as actually robbing a bank, she explained.
“The ambiguity (at best) in the law would allow prosecutors, including the state AG, to bring actions even if a court eventually decided that women could not be prosecuted,” McCormick tells the RFT.
The inclusion of the word "conspiracy" makes Missouri's law different from trigger laws in other states. Oklahoma's trigger law, for instance, says explicitly that it does not "authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child." Trigger laws in Texas and North Dakota do not use the conspiracy language either.
With common methods of abortion, including use of the drug mifepristone, now subject to court challenges that could affect even states without bans, Missouri women may find access to abortion more difficult than ever. But what enforcement of its own law looks like will likely come down to who is elected attorney general next year.
Gross says that, if elected AG, he would rather use his office's resources to support women than meddle with their healthcare.
As for the state's current attorney general and his Republican challenger? We'll update the story if we hear back.
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