The Missouri Supreme Court heard an eleventh-hour appeal Tuesday morning that will decide the fate of an amendment that would repeal the state’s abortion ban if passed by voters.
The court heard the case at 8:30 a.m. Because the deadline for anything to be on the November ballot is 5 p.m. Tuesday, a same-day decision is expected.
Read the latest: Missouri Supreme Court orders abortion legalization back on the ballot
Cole County Judge Christopher Limbaugh ruled late Friday that the text of Amendment 3 failed to meet state requirements by not naming the sections of Missouri law that would be affected by the amendment.
Missourians for Constitutional Freedom, the group behind the amendment, filed an appeal of the decision on Saturday to the Missouri Court of Appeals’ Western District, which then transferred the case to the state Supreme Court.
Attorney Chuck Hatfield, representing the group behind the amendment, argued before the court Tuesday morning that state statute does not require the disclosures that the circuit court decision implied in its ruling.
“It requires a disclosure of what is repealed, and it does not say that the proponents must disclose changes to statutes or the repeal by implication,” Hatfield said. “And that makes sense, because constitutional amendments here, first, do not repeal statutes ever.”
Mary Catherine Martin, an attorney for the group against Amendment 3, argued the amendment does not meet the constitutional and statutory requirements to be on the ballot because it fails to inform the sections of the law that would be changed.
“These requirements protect voters. They do not undermine the initiative petition process. They are set forth in the constitution and the information statutes in order to protect all Missouri voters,” Martin said.
Hatfield argued that the lawsuit was “light on legal arguments but weighty with political argument.”
“They can go out and have that debate and discussion, but the time and the place to talk about whether amendment three is a good idea is in November, and the campaign leading up to November,” Hatfield said. “It's not here, in this courtroom or in the courtroom down the street in the circuit court of Cole County.”
Hatfield said the Supreme Court judges should not “allow themselves to be used in attempts to take away the right to have the debate.”
Tori Schafer, speaking for Missourians for Constitutional Freedom, said the ruling by Limbaugh directly contradicts the Supreme Court’s handling of similar cases.
“The court has consistently held that technical requirements will not keep a measure from the ballot. This court should reject the invitation to order this proposed amendment removed from the ballot,” Schafer said.
Supreme Court Judge W. Brent Powell said prior cases similar to this one have dealt with whether there was direct conflict between two constitutional provisions or two statutes.
“I've not found any cases that analyzed whether and when there was a constitutional provision that may conflict with the statute. Do you have an answer to that?” Powell asked.
Martin said the fact that this issue hasn’t been raised yet “does not mean that that's not the plain and unambiguous meaning of the statute.”
After the hearing, Martin said it would be best for the court to rule before the 5 p.m. deadline.
“I’m not in the business of saying what the Supreme Court has to do, but it is my position that the only way to give us full relief is for them to rule by this afternoon,” Martin said.
Missouri Secretary of State Jay Ashcroft announced in August that the amendment, which would allow abortion until the point of fetal viability, garnered the required number of signatures to appear on the ballot.
On Monday, he rescinded the ballot certification, citing the judge’s decision Friday.
Speaking on that decision in court, attorney Josh Divine said the court should dismiss the appeal because it is now moot due to Ashcroft’s decertification.
“I want to be clear that the secretary's decision yesterday is not before this court because the interveners have not amended their pleadings or done anything like that to challenge the secretary's actions,” Divine said.
Divine said that while the court did enter a stay on the ruling, a stay is not an injunction.
“The secretary was never under any injunction prohibiting him from decertifying this ballot measure,” Divine said.
However, Ashcroft’s actions caused the defendants to file a motion to hold Ashcroft in contempt of court for decertifying the ballot initiative during the stay.
“This court has authority over this process right now, the public has been told, as they should have been, that you're going to decide whether this measure is on the ballot or not, and that's true, you're going to decide that,” Hatfield said. “The secretary of state went and told them, ‘No, you don't have any authority to decide whether it's on the ballot.’ He just decertified it. It's open contempt for your authority. It's open contempt for the rule of law.”
According to the secretary of state’s office, the number of valid signatures in the districts that met the threshold totaled more than 241,000. The required number was roughly 171,000.
The petition faced multiple lawsuits that ultimately shortened the length of time the organization had to collect signatures.
One of the suits was over the amendment’s fiscal note, with the auditor and secretary of state’s office disagreeing over who had the authority to finalize the note that details the provision's cost.
Both a Cole County circuit judge and the Missouri Supreme Court ruled against Attorney General Andrew Bailey, who argued his office had greater authority over that note.
Another lawsuit dealt with the ballot language initially written by Ashcroft.
The Missouri Western Court of Appeals ruled that Ashcroft’s summaries contained politically partisan language. The court upheld, with few changes, a revised summary written by Cole County Circuit Judge Jon Beetem.
The removal of the amendment would greatly change the landscape of this year's November election.
According to a SLU/YouGov poll conducted of 900 likely Missouri voters from Aug. 8-16, 52% of respondents would vote for Amendment 3.
Missouri Democrats are anticipating a bump in support if the abortion amendment is on the ballot.
Official Ballot Language:
Do you want to amend the Missouri Constitution to:
- establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;
- remove Missouri’s ban on abortion;
- allow regulation of reproductive health care to improve or maintain the health of the patient;
- require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and
- allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?
State governmental entities estimate no costs or savings, but unknown impact. Local governmental entities estimate costs of at least $51,000 annually in reduced tax revenues. Opponents estimate a potentially significant loss to state revenue.
This story has been updated with the Amendment 3 ballot language
