The fate of an abortion rights amendment is now in the hands of the Missouri Supreme Court — and it doesn't have long to reach a decision.
Missouri’s high court will have to issue a ruling by Tuesday, the final day that a measure can be removed from the Nov. 5 ballot. The court scheduled a hearing on the case for 8:30 a.m. that morning.
How the court rules could be decisive for an effort to undo the state's near-total ban on abortion in November and affect voter turnout on Election Day. The decision could also ultimately reshape how constitutional amendments are presented to Missouri voters in future elections.
Late Friday evening, Cole County Judge Christopher Limbaugh ruled that the full text of the ballot measure, known as Amendment 3, failed to meet state requirements by not naming sections of existing law or the constitution that would be repealed if voters pass it.
Proponents of Amendment 3 filed an appeal Saturday to the Missouri Court of Appeals’ Western District, which transferred the case to the state Supreme Court.
Mary Catherine Martin, an attorney for four plaintiffs seeking to remove Amendment 3 from the ballot, said she was grateful Limbaugh rendered a quick decision after he held a hearing on the case on Friday morning. She had argued that backers of the amendment obscured the ability of petition signers to gauge the impact of its potential passage by omitting from the petition mention of laws the amendment would repeal.
“The disclaimer needed to be within the full text of the measure attached to the petitions that were circulated,” Martin said. “So the error is not in the law’s text. And the error is not with the text on the ballot. The error that he found was in the circulated petitions.”
Planned Parenthood Great Plains Votes CEO Emily Wales said Saturday afternoon that Limbaugh’s decision is merely a “distraction.”
“We're going to be on the ballot,” Wales said. “But it is incredibly frustrating to have a last-ditch effort to throw so much chaos into this process.”
Disclaimer debate
Limbaugh’s opinion cited a 2018 ethics and redistricting measure known as Clean Missouri that had a disclaimer at the top of the petition stating that its passage could result in the repeal of a number of statutes.
“The drafters of prior amendments had no reason other than compliance with [state law and the Missouri Constitution] to inform potential signers of the enormously broad impacts, both direct and implied, of their proposed measures,” Limbaugh wrote. “Their inclusion of long lists of affected laws was mandatory in order to protect potential signatories.”
But a number of other constitutional amendments placed before voters didn’t have similar disclaimers as the Clean Missouri measure's. For instance, the 2022 initiative that legalized marijuana for adult use didn’t say at the top of the petition that the measure would repeal state laws inflicting penalties for possession or purchase of cannabis products. And an initiative on the November 2024 ballot that would legalize sports betting in Missouri also didn’t mention any state statutes that could be repealed.
Wales, of Planned Parenthood Great Plains Votes, said doing what Limbaugh would have asked is “functionally impossible.”
“We can't predict every existing or potential future statute that would conflict with a constitutional change,” Wales said. “The way that this works is the voters get to understand what they're voting on, what established right they would be adding to the constitution. And then the courts go through and say, ‘Here's where the conflicts are.’”
Wales also said that if Limbaugh’s ruling is upheld, it would make the initiative petition process “a right in name only.” Requiring petition organizers to “predict and identify every tiny conflict” with state law or the constitution would make the process too difficult, she said.
Martin, the attorney who argued to remove Amendment 3 from the ballot, said whether other constitutional amendments had the appropriate disclaimers is not relevant to this case. “They could very well have broken the law and gotten away with it,” she said.
High stakes
The looming state Supreme Court decision could be a major turning point for the fight for legal abortion in Missouri.
Polling from St. Louis University and YouGov in August found that 52% of poll respondents supported Amendment 3. And that was before the campaign supporting the amendment launched its advertising campaign.
While Republican elected officials have promised to organize an opposition campaign to the initiative, they will almost certainly be outspent. Since the middle of August, the campaign committee backing the passage of Amendment 3 received more than $8 million in donations of $5,000 or more.
By comparison, a group recently formed to oppose Amendment 3 raised about $80,000 in donations of $5,000 or more throughout the entirety of 2024. And a committee that Missouri Right to Life organized raised about $545,000 in large donations since April.
Even some Republicans who oppose Amendment 3 have publicly conceded that it may be an uphill battle to defeat the initiatives at the polls. That includes state Sen. Jason Bean, who represents a district that voted for Republican Donald Trump in 2020 by landslide margins.
“Everything that I'm kind of hearing and seeing, unfortunately, yes, I think it's going to pass,” said Bean, R-Dunklin County, on a recent episode of Politically Speaking.
Missouri Democrats are banking on the abortion initiative boosting turnout for their candidates — particularly legislative contenders in suburban districts. The SLU/YouGov poll showed that abortion initiative provided limited coattails for statewide Democratic contenders.
Other GOP elected officials, including gubernatorial nominee Mike Kehoe, have said they believe abortion rights opponents can defeat Amendment 3. In 2006, an underfunded but well-organized group of social conservatives almost defeated a measure to enshrine protection for embryonic stem cell research despite being heavily outspent.
“I believe the people who are interested in protecting innocent life will show up as well, and we will do everything we can to make sure Missourians understand how important it is to protect innocent life and come out and defeat that amendment,” Kehoe said last month on the Politically Speaking Hour on St. Louis on the Air.
Martin’s lawsuit against Amendment 3 also contended that the measure violated a prohibition against an amendment having more than one subject. Limbaugh didn’t rule on that point.
