Missouri Supreme Court judges sharply split over whether to put a constitutional amendment legalizing abortion on the Nov. 5 ballot.
Earlier this month, the Supreme Court overturned a lower court decision that blocked what’s known as Amendment 3 from going to voters. The measure would place the right to have an abortion up until fetal viability in the state constitution. But the court didn’t release the reasoning behind the decision until Friday afternoon.
The court split 4 to 3 on the matter, with Judges Mary Russell, Paul Wilson, Robin Ransom and Brent Powell voting in the majority. Judges Zel Fischer, Ginger Gooch and Kelly C. Broniec dissented.
Cole County Judge Christopher Limbaugh had ruled that Amendment 3 couldn’t remain on the ballot, because it didn’t specify which state laws could be repealed if voters approved it. But in a decision written by Wilson, the majority of the court said there’s nothing in the Missouri Constitution that requires ballot initiatives to speculate which laws could be struck down.
“This Court has never held that the ‘full text’ requirement in [the Missouri Constitution] requires a proposed amendment to list all statutes that might — if the amendment is adopted — be subsequently declared invalid in whole or in part by a court, and the Court declines to invent such a requirement out of whole cloth now,” Wilson wrote.
In the majority opinion, Wilson also wrote the measure did not violate a constitutional provision requiring a proposed amendment to have only one subject. He pointed out that Secretary of State Jay Ashcroft and Attorney General Andrew Bailey didn’t find defects on the way Amendment 3 was drafted before proponents started gathering signatures.
“The reason these decisions by the Attorney General and the Secretary of State are so important is they occur at the beginning of the process, when an error in form can be corrected with minimum disruption to the citizens’ constitutional power of initiative petition,” Wilson wrote. “Perhaps more important, if (as here) the claimed defect is that the petition omits required information essential for Missourians to have before deciding whether to sign the petition in the first instance, a correction at the beginning of the process — before signatures are gathered — protects that interest.
“One that occurs 17 months later, after hundreds of thousands have signed the petition and those signatures have been verified and counted, and the measure has been certified for the ballot, does not,” Wilson added.
In her dissent, Broniec wrote that she did not believe Amendment 3 conformed with a state law that requires a measure to show “all sections of existing law or of the constitution which would be repealed by the measure.”
“The principal opinion leads to the absurd result here,” Broniec wrote. “That an initiative petition proposing a constitutional amendment can directly conflict with multiple existing statutes — and appear on the ballot with a ballot summary indicating it 'removes' existing law — without ever indicating to signers that existing law is being changed in any way.”
Tori Schafer, a lawyer for the ACLU of Missouri who represented the campaign trying to pass the amendment, said in a statement that the Supreme Court's opinion "was a complete rejection of the anti-abortion politicians' arguments and attempts to subvert our constitutional right to vote to protect reproductive freedom, including access to abortion, birth control, and miscarriage care.”
“We are confident that Missourians will vote in November to end the state’s abortion ban and to protect reproductive freedom,” Schafer said.
State Sen. Mary Elizabeth Coleman, R-Arnold, who was a plaintiff in the lawsuit that challenged the amendment, criticized the court’s decision as judicial overreach.
“The court was right about one thing in today's released opinion, their decision isn't about abortion,” Coleman wrote on X. “It is about abrogating the will of the general assembly by using absurd arguments to reach their desired result.”
Several polls show Amendment 3 getting more than 50% of the vote, with around 25% or more of Republican respondents saying they would support the measure.
