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Five Questions with Rep. Jay Barnes

As the Missouri House of Representatives prepares to take up the legislation aimed at addressing the parameters set forth by Governor Eric Greitens’ call for another extraordinary session concerning abortion, we spoke with Rep. Jay Barnes about the legislation headed to the House floor, and some of the changes he has already proposed.

Missouri Times: What is your overall impression of the bill that came out of the Senate? What changes, if any, are you going to hope to make to it?

Barnes: You can look at the changes made to the legislative bill. (Barnes offered an amendment in the Children and Families Committee hearing on Monday afternoon.) The legislative process is a bicameral process.

Missouri Times: What about the Judge Sachs decision makes abortion regulations a pertinent and timely issue for a special session? Why could this just not have waited until January?

Barnes: Judge Sachs’ opinion leaves some doubt about existing health and safety regulations for abortion clinics. These bills re-state and re-institute the state’s authority to regulate them. The confusion stems from a challenge to ambulatory surgical center (ASC) regs. The question then is what happens to all of the ambulatory surgical center regs that were not specifically ruled unconstitutional in Hellerstedt. We want to make sure that the department has the authority to promulgate regulations, and that’s what the bill does.

Missouri Times: Why is the provision providing original jurisdiction to the Attorney General for abortion laws needed in this bill? What does that accomplish from a legal perspective?

Barnes: From a legal perspective, I think that if you give the Attorney General the ability to investigate and bring charges against an abortion facility for violations of state law, and given the current locations of the political dynamics, those charges are highly unlikely to ever be brought by the prosecuting attorneys in the jurisdictions in which they are located, no matter what the evidence suggests.

Missouri Times: How does giving rulemaking authority to the Department of Health and Senior Services make this a stronger bill? Isn’t there a risk that it would just make abortion rules dependent on who’s in the governor’s office in the long term?

Barnes: To some extent, that is true. Anyway, I think that if you look at how we changed the bill in the House Committee, we added a requirement that abortion facilities shall be required to maintain a written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital within a reasonable distance from the abortion facilities. Putting that language into statute ensures that a later administration can’t come in and undo it. Secondly, this is language that, if you actually read Hellerstedt, the Supreme Court noted that this is what the previous Texas regulation had done, the regulation which was not struck down by the Supreme Court as unconstitutional. So we’ve got a firm constitutional footing on which to stand on this particular provision. And rather than just granting the department the authority to do as it pleases, on page 1 of the amendment to the bill, we now have certain requirements for medical abortions. So we put those into statute so that future administrations cannot come in and undo the work of the current administration

Missouri Times: As we’re looking at the legislation as it stands now, how much concern do you have about how it will stand up in the courts.

Barnes: Well, let’s talk about substance rather than procedure. On substance, I am very confident these can stand up in court.