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Sept. 22, 2024 |  By: Anna Spoerre - Missouri Independent

Missouri Supreme Court voted 4-3 to keep abortion on ballot, newly released opinions show

abortion

By Anna Spoerre - Missouri Independent

The decision to keep a constitutional amendment legalizing abortion on the November statewide ballot was decided by a narrowly-divided Missouri Supreme Court, according to opinions released Friday.

The majority opinion was written by Judge Paul Wilson, with Chief Justice Mary Russell, Judge Robin Ransom and Judge Brent Powell concurring. 

The dissent was authored by Judge Kelly Broniec, with Judge Zel Fisher and Judge Ginger Gooch concurring in the dissent.

Amendment 3, if approved by a simple majority, would legalize abortion up until the point of fetal viability and protect other reproductive rights, including birth control. Abortion is illegal in Missouri with limited exceptions for medical emergencies. There are no exceptions for victims or rape or incest. 

The Supreme Court, while divided, made one point clear in both the majority and dissenting opinions: “this case is not about abortion.”

“It concerns only what information the constitution requires proponents to include on any initiative petition,” Wilson wrote in the majority opinion. “It is about form and procedure, not substance.”

Wilson was appointed to the court by then-Democratic Gov. Jay Nixon. Russell was appointed by former Democratic Gov. Robert Holden. Powell was appointed by former Republican Gov. Eric Greitens, and Ransom was appointed by current Republican Gov. Mike Parson

Broniec and Gooch were appointed by Parson, and Fisher was appointed by Republican Gov. Matt Blunt.  

Both Gooch and Broniec are up for retention elections this year.

The initial case stemmed from a lawsuit filed in late August by a group of anti-abortion lawmakers and activists claiming the initiative petition that was later certified and approved as an amendment, failed to follow a number of laws. 

This includes a section of state law requiring initiative petitions “include all sections of existing law or of the constitution which would be repealed by the measure.”

The plaintiffs — state Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, anti-abortion activist Kathy Forck and shelter operator Marguerite Forrest — sued Secretary of State Jay Ashcroft arguing the initiative petition failed to state any laws that would be repealed if it passed. 

Attorneys for Missourians for Constitutional Freedom, the campaign behind the ballot measure, have said the amendment would not repeal the state’s current abortion law or take it off the books. Instead, they told the courts, it would create a new law that would supersede much of the existing one because not every element of the current law would be rendered moot, including laws protecting women who get abortions from prosecution. 

They also argued anything that falls under the scope of the amendment would be left to the judicial system to interpret and not truly repealed just in the amendment’s passing.

A majority of the Supreme Court ruled that interpreting the law to require listing every possible provision that could be impacted by an amendment would have “absurd effects.” 

“It seems reasonable to expect that few – if any – initiative petitions could survive under such a statute,” Wilson wrote.

He added that to interpret the statute as such would be unconstitutional because it would impede citizens’ right to the initiative petition process. 

“In fact,” Wilson wrote, “it is hard to imagine how a statute could impair and impede the initiative process more.”

Broniec, in her dissent, took a broader interpretation of the word “repeal,” saying that it is also defined as the ability to “effectively render invalid.”

She called the majority opinion “an absurd result contrary to the plain language” of the state constitution.

If Amendment 3 passes, Broniec wrote, Missouri’s current abortion ban cannot continue to stand. She noted a handful of other current laws that could be in conflict with the amendment, including parental consent for minors and the mandatory 72-hour waiting period between meeting with a doctor and receiving an abortion. 

“Today’s opinion from the Missouri Supreme Court was a complete rejection of the anti-abortion politicians’ arguments and attempts to subvert our constitutional right to vote to protect reproductive freedom,” Tori Schafer, an attorney with the ACLU of Missouri, said in a statement Friday. “Including access to abortion, birth control and miscarriage care.”

Coleman, one of the plaintiffs, wrote on social media Friday that she agreed the issue at hand wasn’t abortion.

“It is about abrogating the will of the general assembly,” Coleman wrote. “By using absurd arguments to reach their desired result.”

Mary Catherine Martin, an attorney with the Thomas More Society who represented the plaintiffs, said in a statement Friday that she still believes the crafters of the initiative petition violated state laws.

“It should not require courage to clearly apply the law, but it does when powerful political forces oppose a just outcome,” Martin said. “We applaud the courage of these three dissenting judges.”

The Supreme Court published its decision on Aug. 10, a few hours after oral arguments were completed and less than three hours before the constitutional deadline to remove a question from the ballot. 

In their decision, the majority reversed a lower court ruling made just four days earlier by Cole County Circuit Judge Christopher Limbaugh, who recommended the measure be stripped from the Nov. 5 ballot. 

As part of its decision, the Supreme Court ordered that Ashcroft “certify to local election authorities that Amendment 3 be placed on the Nov. 5, 2024, general election ballot and shall take all steps necessary to ensure that it is on said ballot.” 

A day earlier, Ashcroft, in an unprecedented move, attempted to decertify the ballot measure based on the lower court’s ruling, and temporarily removed Amendment 3 from the Secretary of State’s website.