A Missouri judge ruled Friday evening that a reproductive-rights amendment did not comply with state initiative petition requirements, leaving the door open to potentially withhold it from the November ballot.
Cole County Circuit Judge Christopher Limbaugh ruled that the coalition behind the citizen-led ballot measure failed to meet the sufficiency requirement through a “failure to include any statute or provision that will be repealed, especially when many of these statutes are apparent.”
A spokesperson for Missourians for Constitutional Freedom, the campaign behind the reproductive-rights amendment, said they plan to appeal.
Limbaugh also wrote that while he found a “blatant violation” of state law, he “recognizes the gravity of the unique issues involved in this case, and the lack of direct precedent on point.”
As a result, he won’t issue an injunction preventing the amendment from being printed on the ballot until Tuesday to allow time for “further guidance or rulings” from the appeals court.
The constitutional deadline for ballots to be printed is Tuesday.
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.
“The court’s decision to block Amendment 3 from appearing on the ballot is a profound injustice to the initiative petition process,” Rachel Sweet, campaign manager with Missourians for Constitutional Freedom, said in a statement. “And undermines the rights of the 380,000 Missourians who signed our petition demanding a voice on this critical issue.
The lawsuit was filed two weeks ago by a group of anti-abortion lawmakers and activists 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.
The plaintiffs — state Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, anti-abortion activist Kathy Forck and shelter operator Marguerite Forrest — said in a statement Friday evening that the amendment’s scope is “staggering.”
“Missourians have a constitutional right to know what laws their votes would overturn before deciding to sign initiative petitions,” they said. “Amendment 3 isn’t just about abortion.”
The plaintiffs were represented in court by Mary Catherine Martin, an attorney with the Thomas More Society who argued during a brief bench trial Friday morning that 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 “include 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.”
Loretta Haggard, an attorney representing the campaign supporting the amendment, said 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 told the judge in court that 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 Missouri’s current restrictions would not survive for this reason.
Ultimately, Limbaugh sided with the plaintiffs, writing that the page attached to the initiative petition forms “included no disclaimer or any equivalent to a disclaimer.”
“In fact,” he concluded. “The full and correct text failed to identify any ‘sections of existing law or of the constitution which would be repealed by the measure.’”
