Missouri informed consent laws found conflicting, controversial and inconclusive
During the summer of 2017, the Missouri legislature passed a bill that changed the state’s abortion laws. Exactly what it means is still in dispute.
Sen. Bob Onder, R-St. Charles County, tweeted, "It only takes the Missouri consent laws back to where they were in 2010."
In 2010, there was a 24-hour waiting period for women who ask for an abortion.
The 2017 law makes it 72 hours.
So, Onder is wrong on that count. When we asked him about his tweet, he told us, "The issue, of course, is the requirement that the physician to perform the abortion meet the patient and engage in the informed consent personally."
And that’s where the language gets complicated and even conflicting. In fact, we’re withholding a rating on the Truth-O-Meter. But our research helps explain what’s going on.
After the legislation was signed by Gov. Eric Greitens in July, Planned Parenthood and the American Civil Liberties Union petitioned for a temporary restraining order over specific portions of the bill that deal with a patient’s informed consent before an abortion.
That bill, SB5, stated: "The physician who is to perform or induce the abortion shall, at least seventy-two hours prior to such procedure, inform the woman orally and in person" of risks associated with her procedure.
Planned Parenthood argued this imposes an "extreme and unprecedented set of requirements" on Missouri women and their physicians, and restricts women’s access to abortion services. But Republican supporters say it’s reverting the state to earlier rules.
In October, a Jackson County judge denied the restraining order request.
Informed consent law in 2010
Onder pointed us to a specific section of statute in Missouri law. Prior to 2010, that line specified that "a treating physician" must be the one to provide informed consent information. In 2010, the language in that same section of the bill was amended to instead require the patient to have a conference with "the physician who is to perform" the abortion or a "qualified professional."
"My point was that pre-2010, it was the physician who was to perform the abortion required to administer informed consent," Onder said in an email. "And SB 5 returns the law to that requirement."
But did Missouri law actually require the performing physician to provide informed consent in 2010? That depends on how you interpret what "a treating physician" is. Onder said that a treating physician was always "understood to mean that the physician who provided informed consent was the same physician who was to perform the abortion."
Lawyers aren’t so quick to confirm that. We reached out to multiple clinical lawyers who said the definition of "a treating physician" is not entirely clear in this case.
Jesse Lawder, vice president of marketing and communications for Planned Parenthood of the St. Louis Region and Southwest Missouri, interprets this clause of the statute as "a" treating physician, which is different than "the" treating physician who is the person to perform or induce the abortion.
This isn’t the only problem Planned Parenthood has with the newest changes to Missouri abortion law.
Informed consent law in 2017
Planned Parenthood claims that, thanks to changes made during the 2017 special session, Missouri’s abortion statute now contradicts itself when it comes to who must provide informed consent.
The Missouri legislature amended the line of statute Onder pointed us to during the 2017 special session to include a "referring physician" in the list of people who could provide informed consent. But in addition to that line, the Missouri legislature also added a brand new chunk of language in another section of the state’s abortion statute.
That language reads, "The physician who is to perform or induce the abortion shall, at least seventy-two hours prior to such procedure, inform the woman orally and in person."
So, in one section of statute, section 188.039, there’s a requirement that "the physician who is to perform or induce the abortion, a qualified professional or the referring physician" must confer with the patient, and in another, section 188.027 there’s a requirement that the physician who is to perform or induce the abortion explicitly provide informed consent info.
Onder doesn’t see a problem with this.
"Nothing in section 188.027 contradicts section 188.039," Onder said.
The judge in October said the argument that the law was contradictory, along with several other attempts to block the law, failed to "meet the court’s high bar for granting a preliminary injunction."
As a result, the new abortion laws went into effect on Oct. 24, 2017.
Onder stated that changes made to state statute during the 2017 special session on abortion law, "only takes the Missouri informed consent laws back to where they were in 2010."
There’s a difference between 24 hours and 72 hours for the waiting period. But the tricky part between 2010 and 2017 lies in the difference between a treating physician and the treating physician. Also, a different part of the 2017 bill refers to who must inform the patient in different ways.