Missouri's abortion ballot initiative proposals, a deep dive
Any of the 11 would be so much better than Roe.
I have a column in the Missouri Independent today arguing in favor of the effort to amend the Missouri constitution to protect the right to abortion (and more). But because I’ve seen some confusion about and objections to the ballot initiative coming from a number of prominent abortion rights advocates, I want to lay out in greater detail what the ballot initiative would do and why I believe we desperately need it.
So let’s get into the weeds—please send questions and pushback.
What the ballot initiative would do
The backers of the effort to legalize abortion in Missouri have submitted 11 different versions of a ballot proposal (each is only a page long and you can read them here). All would add the Right to Reproductive Freedom Initiative (“the Initiative”) to the Missouri constitution to protect the fundamental right to reproductive freedom, broadly defined to include personal decision making regarding:
“prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.”
Four of the proposals would prohibit the government from banning abortion before fetal viability (which was the law under Roe v. Wade and Planned Parenthood v. Casey), and four of the proposals would prohibit bans before 24 weeks. The proposals that prohibit bans before viability/24 weeks also prohibit bans where the patient’s physical or mental health is at risk or the fetus is not actually viable, in the good faith judgment of the treating health care professional. Three of the proposals would not allow abortion to be prohibited at any time.
I have written about why gestational limits are harmful and how one impacted my own pregnancy here. However, it is important to understand that no version of the Initiative imposes a cutoff. The versions of the Initiative proposal that mention viability/24 weeks would set a constitutional floor on when the legislature can restrict abortion. Advocates would be free to lobby for abortion legislation that is more permissive than that. (But have you met our legislature?) This is different than, for example, the statutes of New York and Illinois in which legislatures have imposed gestational ceilings on abortion with exceptions.
Even though our legislature would almost certainly ban abortion after viability/24 weeks if permitted to do so, reimposing the bright line Roe/Casey rule of no bans before viability would go a long way to alleviate the suffering of Missourians in need of abortion care who currently have to either leave the state, self-manage, or carry to term against their will. It would also eliminate the dangerous interference in care for women who miscarry in Missouri.
But the ballot initiative would not return Missouri to the pre-Dobbs era, in which our legislature couldn’t ban abortion outright, but was able to make it extremely difficult to get an abortion through the use of “targeted regulation of abortion providers” or “TRAP laws.”
Any of the 11 versions of the ballot initiative would put Missouri in a different legal universe for the protection abortion. To understand why, we have to get a little bit technical. Join me for a brief history of the legal standard used to determine whether an abortion restriction is constitutional:
Roe to Casey to Dobbs to the Missouri Reproductive Freedom Initiative
Strict Scrutiny under Roe v. Wade
The U.S. Supreme Court recognized in Roe v. Wade that one’s 14th Amendment right to liberty includes the fundamental right to end a pregnancy. Going forward, courts determining whether an abortion restriction was constitutional would have to apply the standard of review used to evaluate laws impacting fundamental rights. This highest standard of review is called “strict scrutiny.” To survive strict scrutiny, legislation must serve a “compelling” governmental interest and it must be “narrowly tailored” to serve that interest through the least restrictive means.
The Roe court held that the state had an interest in protecting prenatal life, but that this interest could not be a compelling one until a fetus was viable–so Roe invalidated abortion bans in 46 states. The Court broke up how a state could regulate abortion by trimester: because of the safety of first trimester abortion, the government could regulate it only as much as it regulated other medical procedures. In the second trimester, the government could still not prohibit abortion but could regulate it in ways reasonably related to maternal health. After viability, the government could prohibit abortion to serve its interest in potential life, except where necessary to protect the patient’s life or health. (The idea that the state knows and would protect the interests of the potential life better than its potential mother is perverse, but still very much with us today.)
When abortion restrictions had to survive strict scrutiny under Roe, courts struck down waiting periods, laws allowing parents to deny minors’ abortions, “informed consent” requirements aimed at discouraging abortion, medically unnecessary clinic regulations, and requirements that abortion providers have admitting privileges at hospitals. But then came, Casey.
Planned Parenthood v. Casey’s Undue Burden Standard
In 1992, abortion opponents believed they might finally succeed at getting the increasingly conservative court to overturn Roe. Instead, the controlling opinion in Casey explained that one’s right to end a pregnancy before viability “is a rule of law and a component of liberty we cannot renounce.”
However, the Casey decision replaced strict scrutiny with a new legal standard that led to anti-abortion legislatures gutting abortion access. Casey said that the state could regulate to protect potential life from the outset of pregnancy so long as it did not impose an “undue burden” on the right to an abortion before viability. The government could now impose restrictions aimed at ensuring the patient’s decision to have an abortion was “informed,” such as waiting periods, parental notification, and an extra clinic visit to hear anti-abortion talking points from the state in the name of “informed consent.”
The idea that a person who wants an abortion needs the government to make sure she really knows what she is doing is infantilizing, and the Court failed to recognize how such requirements burden patients with extra costs, travel, and days or weeks spent unwillingly pregnant. However, Casey was clear that states could only attempt to persuade a woman not to have an abortion, not try to block her. The decision explicitly said the state could not use unnecessary health regulations to create a substantial obstacle for a woman seeking an abortion. But abortion opponents saw an opening despite this and exploited it, enacting myriad TRAP laws that had to be litigated to keep any abortion clinics open in red states.
Under Casey, the number of abortion clinics in 12 states, including Missouri, dwindled to one, as legislatures enacted regulations with bogus health justifications that made it impossible to provide abortion care. In 2016, the Supreme Court struck down requirements that would have wiped out abortion access in Texas by requiring providers to build inappropriate ambulatory surgery centers and doctors to have useless and impossible to obtain hospital admitting privileges. The Court recognized those regulations would imperil the health of pregnant women rather than protect it.
But anti-abortion states, including Missouri, refused to take “no” for an answer and continued to defend clinic-closing TRAP laws, presumably in the hope that the new justices appointed by President Trump would give them a different answer. But in 2019, the Court said Louisiana’s admitting privileges requirement was an undue burden just like Texas’s was and struck it down.
Dobbs finally freed state legislatures to drop the pretense of protecting the health of abortion patients. Because the federal Constitution suddenly does not protect one’s decision whether or not to give birth, a state can ban abortion outright–unless, of course, the state constitution protects the right to abortion.
The Missouri Reproductive Freedom Initiative’s Super Strict Scrutiny
The day Dobbs was decided, Missouri’s trigger ban on abortion went into effect making providing an abortion a felony punishable by 5 to 15 years in prison. The law does not have a medical emergency exception in the traditional sense, instead a medical emergency is an “affirmative defense” to the crime of abortion for which the doctor has the burden of proof. This is extremely dangerous because it forces doctors to prioritize legal risk over the health of the patient.
Missouri’s statute states that a woman who has an abortion cannot be charged with conspiracy to violate the abortion ban. It is silent as to whether she can be charged as the principal or under a different statute. Governor Eric Parson issued a statement when Attorney General Andrew Bailey was his General Counsel that said a woman who has an abortion cannot be prosecuted. They should be held to that. However, a local prosecutor might disagree, and Bailey and his Republican challenger in the AG race, Will Scharf, have refused to say whether they would prosecute women who end their pregnancies. Even when abortion was a right under Roe/Casey, women, especially women of color, were criminalized for their pregnancy outcomes, for example when authorities investigate someone for drug use after they miscarry. Today, pregnant women are at even greater risk of surveillance or prosecution under Missouri’s felony ban.
The various versions of the Missouri Reproductive Freedom Initiative would not only prohibit banning abortion before viability (or at all), they would also prohibit prosecuting or penalizing someone based on their actual or alleged pregnancy outcomes, including miscarriage, stillbirth, or abortion. Prosecuting or penalizing someone for helping another person exercise their right to reproductive freedom would also be unconstitutional.
The significance of this should not be underestimated. It would protect people who lose pregnancies and people who self-manage their abortions targeted by creative prosecutors or abusive partners. This would invalidate the criminal and other penalties currently in place for abortion providers and allow them to err on the side of reducing medical risk rather than legal risk even when providing post-viability abortions. It would protect against efforts like that of Senator Mary Elizabeth Coleman to make it illegal to provide abortion doula services, or drive someone out of state to get an abortion, or host a website that explains how to get an abortion. It would thwart legislators’ repeated efforts to make transporting abortion medication a felony.
Missouri desperately needs to decriminalize abortion, but any of the ballot proposals would do much more than that because they would protect abortion access by requiring that abortion regulations survive strict scrutiny.
The state would have to prove that a regulation was narrowly tailored to serve the specific compelling interest of protecting the health of the person seeking care, “consistent with widely accepted clinical standards of practice and evidence-based medicine.” For example, a law like Missouri’s that (when abortion was legal) required that a doctor dispense medication abortion in-office rather than writing a prescription should not survive court review because that is not consistent with standard medical practice and does not protect patient health. Rather than abortion providers having to develop reams of evidence about the cost of complying with a TRAP law, the lack of medical necessity, and how many patients would lose access to abortion care to demonstrate an “undue burden,” the burden would be on the government to prove an abortion regulation is medically necessary and does not infringe the patient’s autonomous decision-making.
Concerns and misunderstandings about the ballot initiative
According to an April article in Politico, important advocates for reproductive freedom in Missouri do not support the initiative proposals because most of them would allow the state to prohibit abortion after either viability or 24 weeks gestation.
Again, these advocates are completely correct that gestational cutoffs are bad policy. However, the discourse on abortion is so warped that even many people who consider themselves pro-choice support gestational limits. The proponents of the various ballot proposals may believe Missouri voters will not approve an amendment without one.
Pamela Merritt, executive director of Medical Students for Choice told Politico, “viability is an arbitrary line.” Planned Parenthood of the St. Louis Region and Southwest Missouri says it is, “not a medical construct.” I don’t know about medical constructs (“viable” is certainly not how doctors were describing my pregnancy when I started having contractions at 26 weeks), but it is a legal one, which governed federal constitutional law for almost 50 years and which is currently in use in many blue states.
A line at viability or 24 weeks gives someone who learns at her 20-week scan that her baby has a fatal anomaly time to end the pregnancy. But a 24-week cutoff can be a painful and potentially tragic intrusion when there is bad news but the situation is less clear. This was my experience when I was under pressure to abort one twin due to an anomaly that was a potential threat to the other twin. Because I knew how to get a post-viability abortion a few states away, my husband and I decided to wait past my state’s cutoff and hope for a miracle–and we got the miracle. It is horrifying to me that if I wasn’t unusually knowledgeable about abortion and able to afford a third trimester procedure, I would have felt I needed to abort one of my babies before 24 weeks to protect his brother.
I read the Missouri ballot proposals to be significantly more protective of terminations for medical reasons after viability than the law in place at the time where I was living (the blue state of New York) because of the prohibition on bans where a patient’s physical or mental health is endangered and when the pregnancy is not actually viable, but I acknowledge that it could depend on how risk averse your hospital’s lawyers are.
I would be open to hearing an argument that Missouri voters would approve a ballot initiative that did not mention viability (though if I put myself in the shoes of a litigator trying to get the restrictions with the biggest impact on abortion access struck down, I think might prefer the bright line of a viability/24 week limit on when the government can regulate). Regardless, I’m not aware of any critic of the viability language arguing for a ballot initiative without it. According to Politico, Planned Parenthood of the St. Louis Region and Southwest Missouri:
“quit the ballot effort because most of the nearly dozen versions activists submitted to state officials propose only protecting abortion access before the fetus is viable or until 24 weeks of pregnancy, while other versions would impose other restrictions, such as parental consent requirements.”
This is strange given that there are three versions of the ballot proposal that would not allow abortion to be banned at any point in pregnancy. Furthermore, there is no version of the ballot proposal that would “impose” a restriction such as parental consent.
The proposals that mention parental consent say the legislature “may enact” laws requiring parental consent, but those laws must permit the minor to have an abortion if, in the good faith judgment of the health care professional, obtaining consent may lead to physical or emotional harm, the minor is mature and capable of consenting, or obtaining consent is not in the best interests of the minor. Under Casey, minors in that situation had to get an order from a judge. The language about parental consent is a limit on what kind of parental consent the legislature can impose. So if the Missouri constitution were amended with that language and you sued to invalidate Missouri’s judicial bypass requirement, you’d have a pretty slam dunk case. If you were instead suing under a version of the Initiative that is silent as to parental consent, you would have to prove that the law was not narrowly tailored to serve the compelling interest in health. That may be true (we’ll touch on a Minnesota ruling to that effect below) but it isn’t as straightforward a case (at least one prominent pro-choice scholar has suggested parental notification requirements can withstand strict scrutiny).
Similarly, some versions of the ballot proposal state that nothing in it requires government funding of abortion. This is presumably so abortion opponents can’t claim the initiative would require "tax payer-funded abortions." This means that if you sued saying the Missouri constitution requires Medicaid coverage for abortion, you would probably lose. It does not mean that the legislature couldn’t fund abortion if you could convince them to do it. Abortion is healthcare, and insurance, including Medicaid, should cover it. But at this point in time, abortion rights supporters don’t seem to have convinced even enough pro-choice people of that.
But maybe we could! I can tell you about the law, but I am not qualified to opine on what is politically possible in Missouri. I’d be amenable to an argument that abortion rights supporters are angry and abortion opponents are going to lie about the ballot proposal regardless of what it says so the ideal policy should go before the voters. Anyone who thinks there shouldn’t be language in the ballot proposal about parental consent, or funding, or anything else should make the argument. But as someone who believes the situation is dire here and desperately wants to grab a clipboard and start collecting signatures, the detractors’ statements to the media have left me baffled as to what exactly the objection is and what they propose as an alternative.
What’s the plan to “Re-imagine Roe” in Missouri?
I have seen more than one prominent abortion rights advocate criticize ballot efforts in various states on Twitter using the hashtag #reimagineRoe. I was hopeful I’d get a sense of what that strategy entails in Missouri when I saw that Planned Parenthood has a report on its website titled “Re-imaging Roe.” The report documents Planned Parenthood’s phenomenal response to Dobbs of providing abortion care, funding, and logistical support to patients traveling to Illinois, as well as their successful advocacy for pro-abortion access policy in Illinois.
That work is innovative and desperately needed. It is not, unfortunately, sufficient to address the suffering of Missourians who cannot leave the state for care.
Dr. Colleen McNicholas, head of ACOG’s Missouri chapter and the chief medical officer at Planned Parenthood of the St. Louis Region & Southwest Missouri, implied in Politico that the ballot initiative is unacceptable because Missouri is a lost cause:
“When you are practicing under an elected body that is so aggressive and the potential consequences for providers are a felony, time in jail, loss of license, etcetera, those ‘protections’ on paper don’t play out in reality. We already know that now. We have physicians right now who are afraid to provide completely legal care like miscarriage management or emergency contraction or ectopic care.”
Dr. McNicholas is an abortion superhero. She endured harassment, threats, and investigations traveling to care for patients throughout the midwest when abortion was legal but inaccessible pre-Dobbs. It is beyond understandable if she has had enough with Missouri and feels her efforts are better spent revolutionizing abortion care in Illinois.
But she does not appear to understand the fight for our rights here in Missouri that she is criticizing. If we are able to amend the constitution, yes, the legislature will still be incredibly hostile to abortion, but it will be constitutionally barred from penalizing abortion seekers and their medical providers, loved ones, and abortion funds, and from regulating abortion care out of existence.
In a Tweet questioning the Ohio effort to protect abortion (which ACOG Ohio endorsed despite it not aligning completely with ACOG’s policy preferences), Dr. McNicholas wrote:
REMINDER: if a constitutional amendment passes, existing law & regulation do NOT magically disappear
EX: MI passed Prop3 in Nov 22. It is still considered a restrictive state- with waiting periods & parental consent
#ReimagineRoe
It is true that existing laws do not disappear. Even with the complete ban invalidated, you’ll have to sue to get regulations that shouldn’t survive strict scrutiny struck down. For an example of how this works, we can look to Minnesota.
Last year, in a case brought by the Lawyering Project and Gender Justice, a district court enjoined laws requiring parental notification, a 24-hour mandatory delay, abortions performed only by physicians (rather than advance-practice clinicians), second trimester abortions performed only in hospitals, as well as felony penalties for minor regulatory infractions.
These provisions were struck down under Minnesota’s state constitution which is not as explicitly protective of abortion as our constitution would be once amended via the Initiative. The Minnesota supreme court had previously held that the state constitution’s protection of the rights to privacy and bodily autonomy included the fundamental right to abortion, but plaintiffs had to convince the court that strict scrutiny applied to regulations that made abortion more costly and less accessible. The Initiative would explicitly make any interference or delay presumptively invalid and subject to strict scrutiny.
The situation in Missouri is intolerable
I’m in a position to get out of Missouri fairly easily for whatever care I might need, but it is intolerable to me that this state does not recognize my rights to bodily integrity and personal autonomy. And the violation of my dignity under current Missouri law is nothing compared to the practical harm experienced every day by people who don’t have the freedom and resources that I do.
From a reproductive justice perspective, Missouri is a total horrorshow independent of the abortion ban. We have an appalling maternal mortality rate, which is three times worse for Black women than for white women, and likely to get worse because of the abortion ban. It took a ballot initiative and litigation to finally expand Medicaid, and postpartum women who should have had Medicaid coverage for the past year have gone uncovered because our legislature wouldn’t get it together and accept federal funding for that purpose until this month.
Close to half of Missouri counties have no maternity care and another 22% have as few as one OB/GYN. Missouri is covered in contraception deserts. Half of Missouri children under 5 live in childcare deserts. Missouri’s shambolic foster care system separates children from their parents at twice the national rate and then loses track of them.
Many of the people who struggle the most to take care of their children and selves because of this state of affairs are the same people who cannot leave the state for abortion. A person may not have the money, the time off work, or the childcare to travel–particularly if she is in a rural area far from the clinics that border Missouri. She may need to hide her abortion from an abusive partner. People who can’t get out of state have to endure the legal and emotional risks of self-managing or have children unwillingly.
Things can still get worse
Workarounds are important, but you can’t necessarily rely on them. As more states pass near or total bans, wait times out-of-state will increase even more than they already have, forcing patients to have even later abortions or miss the gestational cutoffs in Illinois and Kansas.
And the networks working to get people out of state can come under attack. Texas Attorney General Ken Paxton managed to keep the state’s abortion funds from operating for nine months before being stopped by a court. Our Attorney General Andrew Bailey has a similar propensity for harassment without legal authority: he’s made threats in the abortion context and just spent months terrorizing trans people with no basis in law.
A robust campaign for the ballot initiative would likely deter attacks like this by officials, as well as prosecutions of people suspected of self-managing, and new anti-abortion legislation. This is because Republican officials openly fear that voters will upend Missouri’s anti-abortion landscape if given the chance and are trying to minimize the backlash to Dobbs and Missouri’s anti-abortion regime.
A plea to fellow abortion rights supporters
Pro-choice critics of the ballot initiative don’t seem to understand just how protective of reproductive freedom any version of it would be. No one is obligated to have a position for or against anything, but it isn’t fair for trusted organizations to mischaracterize what the ballot proposals would and would not do. It does not promote reproductive justice to undermine our fight for the autonomy and safety we need at home in Missouri.
Things are truly bad here. If you are going to publicly object to the solution on the table, please make sure your criticism is informed. And unless you disagree with me that the status quo is intolerable, I think detractors of the ballot effort owe us an explanation of what their alternative plan is.
Better yet, take a second look at the ballot initiatives with an open mind, ask questions, explain your concerns. I’ve lived in Missouri for under a year and don’t have a great understanding of state politics or the local repro movement, but I’m committed to reproductive justice and looking for ways to help! If you have a legal question, I’m happy to look into it and post what I figure out here on my shiny new substack. From an outsider’s perspective, the dialogue around the ballot effort has not been great. Let’s try to improve it, because things really could and should be so much better.