When Missouri Attorney General Andrew Bailey was campaigning for a full four-year term, he claimed, like many Republicans at the time, that a proposed constitutional amendment legalizing abortion could do profound damage to the state’s other abortion restrictions.
During a stop in Chesterfield on the day before the November general election, Bailey said Amendment 3 was a “legal monstrosity” that could open the door to a “parade of horribles.”
With Amendment 3 set to go into effect on Thursday, Bailey is arguing in court that while the measure will make the state’s near-total ban on abortion unenforceable, it won’t immediately strike down a raft of other laws that Planned Parenthood affiliates are challenging. He’s asking Jackson County Judge Jerri Zhang to hold off on blocking those laws during a hearing to take place on Wednesday.
“The only remaining statutes and regulations at issue are those that simply regulate abortion providers but do not prohibit abortion,” Bailey’s office wrote in court filings. “This court can easily adjudicate those disputes on a regular schedule, not at breakneck speed.”
The regulations that Bailey’s office is referring to include a 72-hour waiting period, requirements for doctors to have hospital admitting privileges to perform abortions and a slew of regulations for abortion clinics. Bailey is also trying to prevent Zhang from blocking laws barring telemedicine for abortion care and providing for criminal penalties for abortion clinics.
“Planned Parenthood also ignores that Amendment 3 expressly includes a right to choose childbirth,” the brief states. “Regulations that ensure individuals have adequate time to choose between options — and will not be racked by regret — do not “delay” rights under Amendment 3; those regulations foster those decisions.”
Bailey’s strategy mirrors that of states like Ohio, which tried to salvage abortion restrictions by saying a constitutional amendment protecting abortion rights shouldn’t impact existing laws.
Backers of these restrictions, such as Brian Westbrook of Coalition Life, say they protect women’s health. Westbrook told reporters at a rally in front of Planned Parenthood’s clinic in St. Louis on Tuesday that he hoped Zhang upheld those laws this week.
“What the courts decide is up to what the courts decide,” Westbrook said. “But what we're calling is for these safety standards to clearly be put in place and kept in place.”
Planned Parenthood officials contend that the measures, which they refer to as targeted restrictions on abortion providers, or TRAP, laws, will make it difficult to practically offer access to abortion services when Amendment 3 goes into effect. They’ve also contended the measures are less about patient safety and more about blocking access to abortion.
“The overwhelming medical and scientific evidence concludes that TRAP laws do not actually help patients, and in fact, they hurt them, by restricting access,” said Planned Parenthood interim President and CEO Richard Muniz. “Forcing patients to wait 72 hours for their health care, receive invasive vaginal exams, or read biased, state-scripted information does not protect patients. Missouri's TRAP laws are invasive and coercive, and meant to deter abortion seekers from the care they need and licensed, trained clinicians from providing that care."
High stakes this week
Zhang could decide this week whether to temporarily block abortion laws when Amendment 3 goes into effect. Bailey’s office already conceded that the state’s near-total ban on abortion won’t be enforceable after Thursday.
But St. Louis University School of Law professor Jamille Fields Allsbrook said that even though Zhang isn’t making a final determination on whether the abortion restrictions should stand, even a temporary order blocking their enforcement could be significant for abortion access in the state.
“That would be not just turning the clock back to 2022 — but creating a level of access that arguably is what the voters wanted,” Fields Allsbrook said, alluding to how Missouri only had one functioning abortion clinic before the state’s near-total ban went into effect. “It’s ensuring that there aren't these prohibitions that impede access.”
If Zhang decides not to block the abortion restrictions, then Fields Allsbrook said the fact that the abortion ban isn’t in effect anymore won’t be as meaningful.
“I think you might see voters feeling very much like, what has changed?” she said. “They may say, ‘I still can't go to a clinic. I can't find a clinic. I can't find a doctor.' Or 'I did go and they told me I had to wait.'”
Muniz said in November that Planned Parenthood affiliates are hoping to offer access to abortion care on Thursday. But Fields Allsbrook said that rolling out coverage could take some time.
“It's not going to be a flip and like Friday, suddenly people will have robust access,” Fields Allsbrook said. “Because one, you have to get providers back in the door. You have to get clinics back open. You have to get people to know they can access. So it will take time. But legally there would be a big seismic shift and a seismic change and put Missouri on par with some other more progressive states.”
Zhang will also consider a motion from Bailey's office to move the case to Cole County.
St. Louis Public Radio reporter Sarah Fentem contributed to this story.
