Missouri ‘born-alive’ bill could open door to abortion medication lawsuits

A Missouri House committee spent 90 minutes discussing and hearing testimony earlier this month on legislation that would criminalize medical professionals who don’t provide life-saving care to any infants born during an unsuccessful abortion.

Known as the “born alive abortion survivors act”, it won approval of the House Health and Mental Health Committee on Tuesday, making it the first anti-abortion bill to begin its march toward becoming law since voters overturned Missouri’s abortion ban in November through Amendment 3.

“This legislation is the first of a salvo of legislation that will better define Amendment 3 and provide protections for women and the infant,” said state Rep. Brian Seitz, a Branson Republican and the bill’s sponsor.

But left unmentioned in the debate earlier this month or the brief discussion Tuesday is another provision of the bill that could prove far more consequential.

If passed into law, the bill could also open the door to litigation against anyone who assists another person in obtaining a “self-managed” abortion — no matter how early in the pregnancy.

“It’s broader than just ‘born-alive’,” longtime anti-abortion activist and lobbyist Sam Lee said of Seitz’s legislation. “And it’s broader than the federal proposed law.”

Seitz said his bill drew from language in a federal bill filed by U.S. Rep. Ann Wagner, a Republican from Missouri — though the civil liability provisions in his bill are much more expansive.

He considered several examples of scenarios he feels would be covered if his bill becomes law.

If, for example, someone provided abortion medication to a friend or neighbor, Seitz said, that person could be held civilly liable by one of the woman’s family members if the woman or the fetus is harmed — even during the first trimester of a pregnancy before the pregnancy is viable and even if the abortion was successful.

“They’re acting in the stead of a qualified medical professional,” Seitz said. “And that’s very dangerous.”

Mallory Schwarz, executive director of Abortion Action Missouri, believes the bill goes even further in its attempts to criminalize self-managed abortions.

“The anti-abortion movement has long postured that they aren’t trying to punish women with abortion bans,” Schwarz said. “And yet here we see buried in a ridiculous, anti-abortion kitchen-sink bill, a provision to explicitly criminalize pregnant people for self-managing their abortion.”

When similar legislation was proposed in prior years, the abortion landscape in Missouri was much different. Abortion became illegal in 2022, but even before that, very few abortions were taking place in the state.

“It’s extremely urgent, because the national dialogue is taking place around this issue,” Seitz said in an interview. “Those that cannot speak for themselves, whether they be the elderly, the infirm, the unborn and so forth, they have to be given a voice. And I want to be one of those voices.”

The case for civil liabilities

The focus of Seitz’s bill centers around what care would be required if a baby is born breathing during an attempted abortion. This would be rare, considering abortions after fetal viability — the point at which a child could survive outside the womb without extraordinary medical measures — remain illegal in Missouri, even after Amendment 3’s passage.

But Seitz’s bill also lays out the civil liabilities for anyone who “knowingly performs or induces, or attempts to perform or induce, an unlawful abortion upon another person” as well as for a person who “knowingly aids or abets another person to undergo a self-induced abortion or attempted self-induced abortion or to procure an unlawful abortion or attempted unlawful abortion.”

“That’s one of the things that we’re attempting to do as we chip away at Amendment 3 and we look at some of the ambiguity found in Amendment 3,” Seitz said. “We’re attempting to protect women, not only the infant in the room, but women as well. And I think that section of the bill does that.”

Lee said the civil liabilities language would apply to self-induced medication abortions, regardless of whether the fetus is born alive.

He cited a 2020 case out of Newark, Ohio, where a man pleaded guilty to child endangering and abuse of a corpse after he and his girlfriend, who was 28 weeks pregnant, purchased misoprostol tablets from India in an attempt to end her pregnancy. In a situation like that, the man who purchased the medication could be sued.

Other attempts to invoke civil liability are being tested around the country. This includes efforts to pass “Sanctuary City for the Unborn” ordinances in towns across the country, including in Missouri. These local laws use a 150-year-old federal law to give citizens the ability to sue any person or entity who provides abortion medication through the mail.

But Seitz’s bill is different in that only those related to the woman, infant or fetus can seek damages, Lee said. He added that a woman who took an abortion pill would not be liable under the legislation, unless the child was born outside a clinical setting and the mother then “knowingly, recklessly, or negligently” caused the death of the child.

Michael Wolff, a former chief justice of the Missouri Supreme Court and dean emeritus at the Saint Louis University School of Law, said the bill leaves many questions about how such a law might be interpreted by the courts under Amendment 3. Wolff previously helped advise the coalition that crafted Amendment 3’s language

One of the sticking points? Missouri state statute lacks a definition for “self-induced abortions”.

The bill’s wording, Wolff said, could allow a creative attorney to target medication abortions.

“Without definitions,” he said, “it opens the door to more involvement, or uncertainty, that one has to look to the courts to resolve.”

Concern for palliative care

During a public hearing on the bill earlier this month, Seitz told the story of his granddaughter, who was born at 26 weeks. Her lungs were still undeveloped. In the hour his family had with her before she died, Seitz said he flew her around like “Supergirl” and his wife sang to her.

Because his granddaughter was not to the point of viability, he said they didn’t ask for extra measures to try to extend her life.

If an abortion is attempted but the infant is then born, his bill would require any health care providers present at the time to “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care provider would render to any other child born alive at the same gestational age.”

Medical professionals say this is already the standard of care.

What some raised objections to, rather, is the bill’s requirement that an infant born during an attempted abortion be immediately transported and admitted to a hospital.

A number of lawmakers who opposed the bill asked Seitz about his own experience. At the crux of the matter were disagreements around what would legally be classified as an abortion.

State statute defines abortions as “the intentional termination of the pregnancy of a mother by using or prescribing any instrument, device, medicine, drug, or other means or substance with an intention other than to increase the probability of a live birth or to remove a dead unborn child.”

But in hospitals, miscarriages are often classified as “spontaneous abortions”, leading some Democratic lawmakers to worry that women experiencing miscarriages or who induced labor early to deliver a nonviable fetus would be robbed of the opportunity to say goodbye to their child in the same way Seitz’s family was able to.

“What you’re bringing here is pain and agony to families that have experienced losing their child,” said state Rep. LaDonna Appelbaum, a Democrat from St. Louis.

State Rep. Holly Jones, a Eureka Republican who filed similar legislation, said she would consider rephrasing her bill to specify “abortions by choice”.

But those opposed to the legislation said even that change wouldn’t prevent harm to families.

Schwarz during the public hearing said the bill would harm “parents who are suffering terrible, tragic consequences and want the ability to spend the final moments with their babies.”

“Because the standard of care is not putting a warm light and a blanket if the goal is resuscitation,” she said during public testimony. “Resuscitation would require CPR, which could break that tiny infant’s ribs. It would require aggressive medical care that is not in line with what the families and providers have already decided is best for that unique pregnancy, that unique circumstance.”

Criminal liabilities for health care providers

Seitz also proposes criminal charges against health care providers.

His bill requires any medical professionals with knowledge of a violation of this law to report it to the state. Those who fail to report a violation could face up to five years in prison and up to $10,000 in fines.

The bill goes on to say that anyone who “intentionally performs or attempts to perform an overt act that kills a child born alive” could be charged with first-degree murder.

Missouri already outlaws infanticide, defined in state law as causing the death of a living infant “when the infant is partially born or born.” An infant is defined as any baby younger than 30 days old. “Partially born” is defined as the point at which the child’s head is no longer inside the mother’s womb, even if the lower half of their body still is.

Jones said the language was necessary because abortion providers are not federally mandated to report cases of infants born alive.

“My concern is that if legislators continue to talk about these horrible physicians who are doing these heinous things, people are going to get shot,” said Dr. Betsy Wickstrom, a high-risk OB-GYN based in the Kansas City area.

She was alluding to the 2009 murder of Dr. George Tiller, an abortion doctor in Kansas who was killed while in church.

“So now you’ve put a target on the backs of families who are already grieving,” Wickstrom said. “And you’ve put a smoking gun in the hands of anyone in the entire hospital, and that’s disastrous.”

Missouri Independent is part of States Newsroom, a not-for-profit news network supported by grants and a coalition of donors as a 501c(3) public charity. Missouri Independent maintains editorial independence. Contact Editor Jason Hancock for questions: info@missouriindependent.com.