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Aug 20, 2023

What’s inside Missouri's proposed abortion constitutional amendment

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The fight over the Missouri abortion ban begins with language.

Eager to once again legalize the procedure in the state after a U.S. Supreme Court ruling last year made way for the General Assembly to ban it, abortion-rights supporters have been floating 11 versions of a petition to ask voters for a change in November 2024.

They submitted those would-be changes to the state constitution to Secretary of State Jay Ashcroft to sort out what sort of summary could actually show up on ballots.

Ashcroft, a Republican abortion opponent and 2024 candidate for governor, crafted ballot language that supporters found misleading and designed to sink petitions in a public vote. His office’s summaries seemed to invite a challenge that would delay for months any group’s ability to circulate petitions.

The physician who filed the petitions has sued Ashcroft and will face off with his office at a court hearing on Sept. 11.

Meanwhile, abortion-rights groups fight over language themselves while they look for the strongest changes they can make and still convince a majority of Missouri voters to cast “yes” ballots.

Of the 11 versions of the petition submitted to Ashcroft, abortion-rights supporters appear focused on six of them.

One would promise the right to abortion flat out. The others would give state lawmakers room to regulate. Three versions would let the General Assembly ban abortion after fetal viability (a point that’s coming earlier in pregnancy with medical advances). Two other versions would protect the right of abortion at least up to 24 weeks of gestation, three weeks before the end of the second trimester.

In the summary written by his office for the 11 different abortion rights initiative petition proposals, Ashcroft says the measures will allow for “dangerous, unregulated abortions” without requiring a medical license. If the summary language remains unchanged, things like sample ballots would show voters only Ashcroft’s summary, not the full text of the amendment.

Ashcroft contends the petitions are misleadingly worded to hide the extent of what abortion-rights passage would mean.

“My office is committed to protecting voters from misinformation,” he said in an Aug. 18 op-ed in The Missouri Times, a conservative website.

In a lawsuit, the American Civil Liberties Union accused the secretary of state of politicizing what should be essentially a bookkeeping role.

“Missourians want the right to make personal decisions about their reproductive health care … free from government interference,” ACLU spokesperson Tom Bastian said in a statement to The Beacon. “Out-of-touch politicians (want) to suppress the right to vote on reproductive rights.”

Dr. Anna Fitz-James submitted the 11 original petitions to the secretary of state. The ACLU of Missouri is litigating the case in state courts.

In the meantime, Fitz-James and Missourians for Constitutional Freedom stand as the public face of the drive to put a question to voters. Campaign finance records show the group formed in March.

While that group hasn’t commented publicly about the petition campaign, multiple abortion-rights groups are huddling privately to balance their desire to make abortion legal in as many situations as possible against what could actually pass in 2024.

Polling from August 2022 shows that about 48% of Missourians support a constitutional amendment wiping out Missouri’s existing abortion ban. Roughly 40% oppose legalizing abortion.

All the versions of the “Right to Reproductive Freedom Initiative” start with similar language and lay out broad abortion rights.

They would promise “the right to make and carry out decisions about all matters relating to reproductive health care, including but not limited to prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care, and respectful birthing conditions.”

That mimics language that passed in Michigan and that voters in Ohio will consider in November.

The Missouri petitions lay out broad access to abortion. Kathryn Abrams, a law professor and social organizing researcher at the University of California, Berkeley, spent eight months interviewing abortion-rights organizers in Missouri.

The question at hand, she said, was whether the recent past should be the “ceiling or the floor” for Missouri abortion rights.

She said discussions among the activist groups behind the proposals centered around whether to return Missouri to something like when Roe v. Wade — the landmark U.S. Supreme Court ruling that effectively legalized abortion in 1973, and got reversed last year — was the law. Or whether to ask voters for stronger abortion rights.

“A lot of groups in the state …said Roe was never more than the floor,” Abrams said.

In five of the six versions that those with knowledge of the petitions say appear to be moving ahead, the language would give lawmakers the power to pass laws that regulate abortion at some point in the pregnancy. Three versions allow bans once a fetus is viable — or could likely survive beyond the womb. Two other versions would leave room for bans on abortion beyond 24 weeks into a pregnancy.

The petition that passed in Michigan last year and the Ohio petition up for a vote this fall left room for legislators to ban abortion at the point of fetal viability. The petitions in those states and the proposals for Missouri define fetal viability as the point in pregnancy when clinicians conclude a fetus likely could sustain survival outside of the uterus without the use of “extraordinary medical measures.”

But some of the groups want a ban on any abortion limits. Pamela Merritt, the executive director of Medical Students for Choice, said she won’t back a petition that includes language about fetal viability or 24 weeks of gestation.

“To me, it’s cleaner,” she said. “It’s as clear as that…. Anything else is a solution in search of a problem.”

Merritt said a simpler version would have made it harder for Ashcroft to slow down the signature gathering process — supporters need about 172,000 signatures by mid-May — by arguing about ballot summary language.

“Give him the least amount of words to work with,” she said. “That would have been my recommendation.”

But polling suggests Missourians appear more likely to support something in the middle — abortion access in some cases, but not all.

The August 2022 poll from St. Louis University and pollster YouGov found 58% of respondents supported abortion access at eight weeks and only 40% supported that right at 15 weeks.

Two of the six versions still in play would leave room for laws that insist on parental consent before a minor could obtain an abortion.

But those two versions of the petition would still give a minor an exemption from parental consent if a clinician, “in good faith judgment,” believed seeking that consent put the patient at significant risk of emotional or physical harm. They would also offer a consent exemption if the minor is mature and capable of consenting to an abortion, or at times when obtaining consent would not be in their best interest. The proposals don’t specify how those judgments would be made.

All versions of the petitions also lay out protections for those seeking an abortion and for those providing abortions.

The proposed amendments would bar prosecution of people based on how their pregnancy ends — a miscarriage, stillbirth or abortion. The same concept would apply to abortion providers or those helping someone to get an abortion.

Merritt said she’s worried organizers may be tempted to compromise on what she thinks are essential parts of any petition. Just because abortion-rights supporters added certain restrictions, she said, doesn’t necessarily make them good or productive.

Merritt pointed to Ohio. Similar to what Republican lawmakers hope to do in Missouri, lawmakers there asked voters to weigh in on a constitutional amendment, not mentioning abortion, that would raise the amount of support needed for a constitutional amendment to pass. Voters rejected the amendment.

“Everybody who showed up in August knew that they were voting on whether or not Ohioans would be able to determine at a future ballot, abortion or no abortion,” she said.

At the same time, abortion opponents say the language paints things with broad strokes. Ingrid Duran, the state legislative director at the National Right to Life Committee, said she reads the petitions as “intentionally vague.”

While some of Missouri’s versions define things like “fetal viability” or “government,” Duran said she thinks some essential explanations were left out of the conversation, like the mention of “respectful birthing conditions.”

“What the 11 proposals are trying to do is just trying to get all of the fearmongering and concerns that happened post-Dobbs with one broad stroke,” Duran said. “It says respectful birthing conditions and I was like, ‘What does that mean? What is respectful birthing? Respectful to whom?’”

The hearing over summary language is set for Sept. 11, but Cole County Circuit Judge Jon Beetem, who is hearing the case, said those involved should be prepared for an appeal on his decision.

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MEG CUNNINGHAM is The Beacon’s Missouri Statehouse reporter. Previously, Meg worked as a national politics reporter for ABC News in Washington, D.C., where she covered campaigns and elections. Meg is... More by Meg Cunningham