Ashcroft says MO amendment will allow abortions ‘at any time.’ What does the measure say?

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When Missouri Secretary of State Jay Ashcroft this month certified a ballot measure to overturn the state’s abortion ban, his official website described the proposal as allowing abortion “at any time of pregnancy.”

But that sweeping description – which also says the measure would “prohibit any regulation of abortion” – was effectively already rejected last year by a state appeals court.

“That unrestricted abortion would be allowed during all nine months of pregnancy is not a probable effect” of the measure, the Missouri Court of Appeals Western District ruled in October 2023 after Ashcroft tried to use similar language for an official summary of the proposal.

Missouri voters will decide in November whether to approve an amendment to the state constitution that would enshrine a right to abortion, overturning a ban that’s been in place since the U.S. Supreme Court struck down the federal right to an abortion in 2022. Abortions are currently only allowed in medical emergencies.

Several states will vote on abortion measures this fall. Missouri could be the first, or one of the first, states to overturn a ban since the U.S. Supreme Court decision if voters approve the amendment. A poll released Thursday by Saint Louis University and YouGov found 52% support for passage of the Missouri amendment , with 34% opposed and 14% undecided.

Abortion rights supporters and opponents are racing to define the amendment in the minds of voters with just nine weeks until Election Day. They are also fighting in court – a bench trial is scheduled for next week in a lawsuit challenging Ashcroft’s description of the amendment. The outcome of the courtroom fight will determine what voters see on the Missouri Secretary of State’s website and at their polling places.

The amendment would prohibit the General Assembly from banning abortion until fetal viability, defined in the measure as the point in pregnancy when there’s a significant chance the fetus can survive outside the womb without extraordinary medical measures. The amendment allows but does not require, lawmakers to restrict abortion after viability; the GOP-controlled legislature would almost certainly pass a ban on abortions late in pregnancy.

The idea the amendment would allow abortion at any time in pregnancy is “blatantly misleading,” said Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, the main campaign in favor of the measure.

Any post-viability ban would be required to allow at least three exceptions – for the life, physical and mental health of the woman.

“The language of this amendment is clear and simply puts health care decisions back in the hands of Missourians and their doctors – not politicians,” Sweet said in a statement. “The amendment specifically allows the General Assembly to regulate abortion after fetal viability, but it also ensures protections for a patient’s life and health. No one’s health or life should be at risk because of government interference.”

Abortion opponents have seized on the inclusion of mental health, arguing the term will create a wide opening for abortions late in pregnancy. The amendment would require that abortions after viability be allowed under the three exceptions if one is needed under the “good faith judgment of a treating health care professional” – a term not defined in the amendment.

“Well, I mean it’s an established fact in the abortion debate that maternal health exceptions can be narrow and can be broad. And mental health is the signal, it’s the indication that we mean the broadest sense possible,” said Mary Catherine Martin, an attorney with the conservative Thomas More Society who is challenging the ballot measure in court.

Mental health has been part of the fight that has raged over abortion nationally since the end of Roe v. Wade. But the debate has often centered on whether mental health exceptions should be included in state abortion bans, not whether an abortion rights measure should affirmatively protect ending a pregnancy on mental health grounds.

Alabama is the only state that explicitly includes mental health concerns in the exceptions to its abortion ban, according to KFF, a health policy research organization. Bans and restrictions in 13 states – including Iowa and Nebraska – specifically exclude mental and emotional health from their exceptions. A few other states limit exceptions to physical conditions without explicitly dealing with mental health.

At least one other state, Arizona, has an abortion rights measure on the November ballot that includes mental health provisions.

“This language, I think, is pretty rare,” Yi Wang, a Philadelphia psychiatrist who has researched mental health exceptions in state abortion bans, adding that she has only seen similar language in Alabama.

Mental health conditions are the leading cause of pregnancy-related deaths, according to maternal mortality data from 2017-2019 from 36 states reviewed by the Centers for Disease Control and Prevention. Mental health conditions were the cause of 22.7% of deaths – ahead of hemorrhage (13.7%) and cardiac and coronary conditions (12.8%). No other single cause accounted for more than 10% of deaths.

The data included both deaths during pregnancy and within a year of pregnancy.

“We have seen anti-abortion politicians use every trick in the book to deny women access to critical health care and so we felt the need to be crystal clear,” Sweet said.

Post-viability restrictions

The amendment would allow for regulation after fetal viability “while ensuring that women can access necessary medical care when their health is at serious risk,” Sweet said, saying the measure balances governmental authority to regulate abortion “with the need to genuinely protect women’s health.”

Amendment opponents argue the measure opens the door to non-physicians performing or inducing abortions. The mental health language, in turn, would then raise questions about whether psychiatrists, therapists and other mental health professionals would be allowed to prescribe abortions for women with viable fetuses.

“To be clear, it is the position of pro-lifers in Missouri and others opposed to Amendment 3 that the measure if it passes, would absolutely allow non-physicians to perform or induce abortions at any stage of pregnancy – including when the unborn child could survive outside the womb,” said Samuel Lee, a longtime anti-abortion lobbyist and president of Missouri Stands with Women, the main campaign opposing the amendment.

The Missouri Court of Appeals Western District ruled last year that nothing in the proposal contemplates allowing abortions without requiring a medical license to perform an abortion. The appeals court’s opinion said that after fetal viability the measure does not limit the government’s ability to regulate how abortions necessary under the exceptions are performed.

“Disallowing health and safety regulations – including requirements that physicians perform abortions and that they maintain medical malpractice insurance – is not a probable effect of the initiatives,” the court’s opinion reads .

Missouri psychiatrists – and physicians more broadly – have been paying attention to the possible consequences of the amendment.

“One of the hugest stresses for physicians since the overturning of Roe vs. Wade is that doctors are scared to death that not only will they lose their license, they’ll be charged with a felony,” said James Fleming, legislative chair of the Missouri Psychiatric Physicians Association.

Fleming referred to the American Psychiatric Association’s position on abortion, which says “freedom to interrupt pregnancy must be considered a mental health imperative with major social and mental health implications.”

Amendment spurs lawsuits

The appeals court opinion, which came when Ashcroft was trying to officially summarize several proposed abortion measures for signature gathering, may not be the last word on the issue. Two lawsuits are making their way through the courts.

One lawsuit challenges Ashcroft’s “fair ballot language” of the proposal, which currently appears on his official website and will appear at polling places. The other seeks to block the measure from appearing on the November ballot.

It’s possible the Missouri Supreme Court could eventually take up either case and reach a different conclusion than the Court of Appeals. But for now, the appeals court opinion provides supporters with a court ruling they can point to disputing some of the arguments of opponents.

“It is a fact that the Missouri Court of Appeals Western District rejected these same claims in their ruling on the Secretary of State’s initial ballot title,” Sweet said. “The court ruled that the amendment allows for the regulation of abortion, particularly after fetal viability, provided that the regulations protect the health and life of the patient, and cited the language used by our opposition as misleading.”

For his part, Ashcroft, who will leave office in January after losing the Republican primary for governor , has said “factions” want to use the courts to advance a political agenda.

“I will always fight for the right of Missourians to have clear, understandable ballot language when they vote on such an important fundamental issue as life,” Ashcroft said in a statement.

A bench trial – a trial without a jury – is set to begin Wednesday in Cole County Circuit Court over Ashcroft’s “fair ballot language.”