The Appellate Blog



Challenge to Abortion Informed Consent Law Transferred To Missouri Supreme Court

Mary Doe v. Greitens, WD80387 Posted, Oct. 5, 2017

The Supreme Court of Missouri is set to decide a fascinating First Amendment-based challenge to recent restrictions on abortion enacted in Missouri.

In Doe v. Greitens, the appellant challenges the constitutionality of Section 188.027, which requires abortion providers to give very specific information in the informed consent process. Doe had sought and eventually underwent an early-first term abortion. But things the State required of her and her provider during the ordeal violated, Doe argues, the First Amendment.

The law at issue requires abortion providers to give patients like Doe a booklet that includes the express and prominent statement that: “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.” It also required plaintiff to pay for and view an ultrasound and then to wait 72-hours before having the procedure.

Doe sued the State, arguing (among other things) that these requirements burden her religious freedom without justification. She framed the religious beliefs being violated as including the notion that “her body is inviolable and subject to her will alone” and that “based on the best scientific understanding of the world . . . fetal tissue is part of her body and not a separate, unique, living human being.”

And in an interesting twist, Doe also contends that the statement Missouri requires providers to make – that the “life of each human being begins at conception” – is religious in nature and thus violates the First Amendment's prohibition against the enactment of laws respecting the establishment of religion by the State.

The Court of Appeals didn't weigh in on the merits of the dispute, instead transferring the case to the Supreme Court because the appeal raised real and substantial challenge to the constitutionality of a state statute.

Practice Tip: Doe knew her case was one that the Supreme Court of Missouri would likely have to decide, so she made her record with that in mind. This case thus gives practitioners a look at the mechanics of how constitutional challenges get decided by the Supreme Court.

Under Article V, section 3 of Missouri’s Constitution, the Supreme Court has exclusive jurisdiction in all cases involving the validity of a statute or provision of the Constitution. But, as Judge Newton’s opinion explains, it is not enough that the appeal involve a constitutional issue. The issue must instead be real and substantial. That is to say, one that “presents a contested matter of right that involved fair doubt and reasonable room for disagreement.” It helps too if the question is one of first impression.

Now, if the case involves a real and substantial issue that only the Supreme Court can decide, there a couple of ways of doing it. First, if it’s a clean enough case (for instance, the constitutional issue is the main or only issue to be decided), the litigants can appeal directly to the Supreme Court.

Second, the case can be transfered from the Court of Appeals to the Supreme Court, either before or after an opinion is issued. The Court of Appeals can, either on its own or on a motion by the parties, transfer the appeal to the Supreme Court if it finds that the case involves a real and substantial constitutional challenge (or other issue within the exclusive jurisdiction of the Supreme Court). Or the Supreme Court itself can order an appeal transferred up to it, again either on its own or at the behest of a party. For deadlines and other requirements pertaining to this process, start with Mo. R. of Civ. P. 81 and 83.