A St. Louis judge is considering whether a Democratic prosecutor can help legally challenge Missouri’s near-total ban on abortion.
In January, a coalition of religious leaders filed suit against then-Attorney General Eric Schmitt and several county prosecutors, including Jean Peters Baker of Jackson County, attempting to overturn the ban.
Judge Jason Sengheiser of the 22nd Circuit eventually granted requests from most of those prosecutors to be dismissed as defendants because they had not filed criminal charges under the law. Only Baker and the St. Louis circuit attorney remained.
In June, Baker filed her own arguments asking a judge to declare the law unconstitutional, saying that the wording is vague and inconsistent and flips the burden of proof required in criminal cases from the prosecutor to the defendant.
The state is trying to block the move. Sengheiser heard arguments from both sides on Wednesday.
Baker’s attorney, Amanda Langenheim, told the judge she knew her client’s arguments had never been tried in a Missouri court before. But she said Baker met every requirement to have those arguments heard.
“Baker’s primary duty is not to seek convictions,” Langenheim said. “It is to ensure that justice is done. These are real, substantial, important questions that deserve to be determined on the merits.”
Langenheim agreed that Baker could choose to not enforce the ban in Jackson County.
“But there is a national effort to subvert prosecutorial discretion,” Langenheim said. “She does not have the ability to choose to not enforce these laws without a real and substantial risk of consequences for that action.”
Arguing for the state, Solicitor General Joshua Divine called everything about Baker’s case hypothetical, including arguments of a right to sue and potential harm because of the law.
“It sounds like her solution, her rule is, anything greater than 0% chance of harm means you have standing,” he said. “That’s not true.”
Because everything is hypothetical, Divine added, Baker is asking for an advisory opinion.
“And for 200 years it has been settled law that courts cannot issue advisory opinions,” he said.
Baker’s only goal, Langenheim countered, is guidance, which she said is the entire purpose of the legal action under which she sued.
“Prosecutors are entitled to receive guidance by clear and explicit standards as to who may be charged, what the necessary elements of the crime are, not only to prevent erratic arrests and convictions, but also to ensure uniformity of the criminal laws across the state,” she said.
Sengheiser will issue his ruling at a later date. It will have no bearing on whether the underlying case filed by the faith leaders goes forward.
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