ST. LOUIS (CN) — A St. Louis judge is weighing whether a prosecuting attorney’s cross-claim in a lawsuit challenging Missouri’s abortion ban should stand.
Lawyers from Missouri Attorney General Andrew Bailey’s office argued in a 50-minute hearing Wednesday before Judge Jason Sengheiser that Jackson County Prosecutor Jean Peters Baker’s motion should be dismissed because the court has no authority to grant her request.
Peters Baker, a Democrat whose jurisdiction includes most of Kansas City, filed a cross-claim in an existing lawsuit challenging the law. She claims the criminal penalties in the law violate the equal protection clause in the Missouri Constitution.
“You have to have an actual injury, you have to be asserting somebody's rights,” General Solicitor Joshua Divine, who argued on behalf of the state, told reporters after the hearing. “And she conceded today that she's not asserting anybody's right. She's not asserting her own. She's not asserting the rights of anybody in Jackson County. All of this is completely improper.”
Attorney Amanda R. Langenheim, from the Jackson County Counselor’s Office, acknowledged during the hearing that Peters Baker’s motion is unique.
“Thankfully, the test for justiciability is not dependent upon whether or not something has ever been done before, as history has been amply shown,” Langenheim told the court. “Instead, a justiciable controversy exists when the plaintiff has an equally protectable interest at stake or there's a substantial controversy in between parties. These are the questions that are before this court today.”
During his rebuttal, Divine said the fact that this argument has never been made before should automatically throw up “red flags.”
Divine also argued the motion should be tossed because it was filed two months late and even if it was challenged in a timely manner her claims are no longer a part of the underlying lawsuit after Sengheiser dismissed parts of the lawsuit following a June hearing. He concluded his argument by stating that the state has an interest in moving forward with the case and that that cross-claim presents an unnecessary distraction.
Langenheim told that court that the state’s claim that Peters Baker’s cross-claim would unnecessarily complicate the issue misses the mark.
“The whole purpose of allowing a cross-claim is to allow what could be done in multiple lawsuits to instead be done in one,” Langenheim said. “So, the nature of a cross-claim necessarily means that it will add additional things, that will add additional facts.”
Sengheiser asked Langenheim how prosecutorial discretion played into the arguments.
“Historically, prosecutors have had pretty much absolute unfettered discretion to decide when to prosecute cases, what charges are filed, but recently there's a national effort for diminished prosecutorial discretion,” she answered.
Langenheim noted a high-profile case earlier this year when Bailey filed a petition in the same circuit to oust St. Louis City Prosecutor Kim Gardner for questions regarding her prosecutorial discretion. Gardner resigned shortly after the petition was filed.
Sengheiser didn’t seem convinced by the analogy.
“I'm in that circuit and I’m pretty familiar with the situation,” the judge said. “It was much more than simply not enforcing some laws in that case.”
Langenheim argued that there is ambiguity with whether a woman seeking an abortion could face criminal charges.
Sengheiser took the arguments under submission, but did not offer a timetable for a decision.
A group of clergy leaders filed the lawsuit in January challenging the state of Missouri’s abortion ban on religious grounds.
Former Attorney General Eric Schmitt, who was elected to the U.S. Senate in November, made Missouri the first state to ban the medical procedure minutes after the U.S. Supreme Court overturned Roe v. Wade in June 2022. Bailey, who succeeded Schmitt, along with Governor Michael Parson and several county prosecuting attorneys, are named as defendants in the lawsuit filed in St. Louis City Circuit Court.
The plaintiffs, 13 clergy members of multiple faiths and affiliations, claim the ban violates religious freedom and the state constitution’s promise of separation of church and state.
Schmitt based his legal opinion activating the abortion ban on a trigger provision contained in Section B of House Bill 126, which was passed in 2019 by the Republican-dominated Legislature and allowed Missouri to outlaw abortion if Roe v. Wade was overturned by the Supreme Court’s conservative super-majority.
The ban makes performing an abortion a Class B felony and medical providers who do so could lose their license.
The religious leaders claim the ban is causing a public health crisis.
They say the ban especially hurts the most economically vulnerable, who cannot afford to take time off work or get child care to cross state lines for an abortion.
Additionally, they say the law was passed on theological grounds and in their complaint quote conservative lawmakers' statements regarding the passage of HB 126.
The plaintiffs seek a permanent injunction prohibiting the state from enforcing the abortion ban.
Michele Henry, counsel for Americans United for the Separation of Church and State, represents the original plaintiffs. While she didn’t take part in the hearing, she attended to show support for Peters Baker.
“I'm not going to take a legal position on their arguments, but again, we support them,” Henry told reporters after the hearing. “We do believe those claims are related, but not prepared to really talk about the legal basis of their claims today.”
Divine is confident in the state’s position regarding both the cross-claim and the original lawsuit.
“I think we have very, very strong arguments against the plaintiffs on the merits,” Divine said afterwards. “And somebody else tried to bring exactly these kinds of claims about 50 years ago, 60 years ago, in the U.S. Supreme Court, and the U.S. Supreme Court said this is really silly, the idea that you can't have statutes on the books simply because some religious people agree with them. You won't be able to have murder laws, you couldn’t have theft laws, you couldn't have any laws at that point. That's a recipe for anarchy.”
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