Judge under tight deadline to rule on Missouri abortion amendment’s place on ballot

Tori Schafer, an attorney with the ACLU of Missouri, speaks to media following a trial over Amendment 3 on Friday, Sept. 6, 2024, outside the Cole County Courthouse (Anna Spoerre/Missouri Independent).

A lawsuit attempting to knock a reproductive-rights amendment off the November ballot could hinge on whether it would immediately repeal Missouri’s current near-total ban on abortion, an issue disputed during a two-hour-long hearing Friday.

Cole County Circuit Judge Christopher Limbaugh said at the completion of Friday’s hearing that he intends to rule quickly because the constitutional deadline for ballots to be printed is Tuesday.

Two weeks ago, a handful of anti-abortion lawmakers and activists filed a lawsuit against Missouri Secretary of State Jay Ashcroft, who certified the citizen-led ballot initiative for the Nov. 5 ballot nine days earlier. The group is arguing that the initiative should never have been allowed on the ballot, and they are asking the judge to keep it from being voted on this fall.

The plaintiffs — state Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, anti-abortion activist Kathy Forck and shelter operator Marguerite Forrest —are being represented by Mary Catherine Martin, an attorney with the Thomas More Society.

All but Forrest were part of a lawsuit last year challenging the estimated cost of a proposed constitutional amendment ending the abortion ban.

Missourians for Constitutional Freedom, the campaign behind the amendment, turned in more than 380,000 signatures from Missouri voters across the state, clearing the threshold to earn a place on the statewide ballot, where it needs a simple majority to pass.

Amendment 3 would establish the constitutional right to an abortion up until fetal viability and grant constitutional protections to other reproductive health care, including in-vitro fertilization and birth control. It would also protect those who assist in an abortion from prosecution.

Martin argued Friday that the amendment illegally includes more than one subject, pointing to language protecting “a person’s fundamental right to reproductive freedom” and saying such a phrase encompasses “infinite subjects.”

She contends the amendment could have further-reaching effects that it doesn’t specify, including on Missouri’s current laws prohibiting human cloning , prohibiting the creation of a pre-implanted embryo through in-vitro fertilization solely for the purpose of stem cell research and prohibiting minors from getting gender-affirming health care.

While none of the above issues are specifically mentioned in the amendment, Martin said she believes they still fall under its scope.

“We believe and think it’s pretty evident that cloning and reproductive technologies are matters related to reproductive health care,” Martin said.

Loretta Haggard, an attorney representing the campaign supporting the amendment, said trying not only to imagine, but also to list, every law that could be affected by the amendment would be “impossibly burdensome.”

While Amendment 3 would substantially alter the existing ban, Haggard said what current laws it applies to will need to be determined on a case-by-case basis.

“At most there is speculation about how and to what extent Amendment 3 will affect the existing constitutional ban on human cloning.” Haggard said. “Those disputes need to be decided by courts in future cases in light of specific facts with controversies, not by this court.”

Haggard said the amendment’s single subject and central purpose is clear: “reproductive freedom.”

Martin also claimed the campaign behind the amendment fell short of the law by failing to list the specific laws or constitutional provisions which would be repealed if the amendment is approved by voters.

Missouri law requires that initiative petitions “i nclude all sections of existing law or of the constitution which would be repealed by the measure.”

“No one disputes,” she said, “one of its primary purposes and effects is to repeal Missouri’s ban on abortion.”

Speculation isn’t necessary to come to this conclusion, Martin said, pointing to the ballot summary which reads, in part, that a yes vote would “remove Missouri’s ban on abortion.”

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Haggard contends that while the amendment would supersede existing law, it would not erase it from the current constitutional text, and therefore would not truly repeal the current statute. She said this is because the two texts do have some overlapping similarities: both protect women who get abortions from prosecution and both restrict abortion after the point of fetal viability.

Fetal viability is an undefined period of time generally seen as the point in which the fetus could survive outside the womb on its own, generally around 24 weeks, according to the American College of Obstetricians and Gynecologists.

When it comes to everything else, Haggard said, the amendment would leave the current law to be interpreted through the lens of the new law, meaning any restrictions implemented by the government on abortion prior to fetal viability will have to withstand strict scrutiny in court to remain. She ventured that most of Missouir’s current restrictions would not survive for this reason.

“The measure writes a road map,” she said, “and it’s up to courts and parties in concrete cases to apply those rules in the future.”

Following the hearing, Tori Schafer, an attorney with the ACLU of Missouri, stood outside the courthouse alongside a few dozen people waving signs in support of the amendment.

“The most pressing question for the judge right now is ‘does it make legal sense to kick something off the Friday before ballots are to be printed on a Tuesday?’” she asked.” And the answer to that is no.”

Martin said time will tell.

“Whatever does happen, surely both parties intend to seek whatever review is available by Tuesday and then on into the future,” Martin said outside the courtroom. “This will not be the last day, no matter what happens.”

This story may be updated.

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