Jamie Corley repeatedly misinforms the public about her Missouri abortion ballot initiative

The words in a law matter.

I published an op-Ed in the Kansas City Star yesterday looking at some of the biggest problems with the abortion ballot initiative proposed by Jamie Corley and her Women and Family Research Fund, specifically why her poorly drafted health and rape exceptions would not work the way she says they would.  I previously wrote an analysis of her proposed amendment that is here. Below, is a look at additional significant problems and Corley’s statements about them, which range from misleading to flat out untrue. 

Cutoff to “health and safety” exception 

Corley has repeatedly framed her proposed amendment as a remedy for the fact that Missouri’s current near-total abortion ban “puts women's lives at risk,” “and makes it dangerous to be a mom in Missouri.”  She has criticized the current law’s “very ambiguous medical emergency clause that really endangers women’s lives.” 

In fact, Corley’s proposed amendment would explicitly write into the Missouri Constitution that a patient’s right to end a pregnancy that threatens her health or safety ends at viability:

4. The state shall not deny or interfere with the fundamental right to choose to have an abortion before fetal viability, in the case of rape or sexual assault, incest, fatal fetal abnormality, or risk to the health or safety of the female seeking an abortion. (emphasis added)

The average voter is likely to think her claim to be protecting the lives of women means at whatever point a woman’s life is at risk, so Corley’s statements are misleading.

But Corley went from misleading to outright falsehood when she claimed in an interview last month that “of course, the health and safety of the mother exception extends always throughout gestation." 

In a more recent statement, Corley now admits the opposite is true: her health and safety exception does end at viability. But now she says that’s not a problem because the medical emergency exception in Missouri’s current abortion ban applies after viability. That is, the same inadequate medical exception that she correctly says is endangering Missouri women—which she would leave the legislature free to make even worse—somehow stops being dangerous at viability. 

Inadequate “health and safety” exception

Corley has also mischaracterized the “health or safety” exception that her proposed amendment does have from 12 weeks to viability. She claims her proposed amendment gives discretion to doctors to decide whether a patient’s health or safety is at risk, but, in fact, such a provision is not in the text.

Instead, her amendment would allow the legislature to leave the dangerous health exception in place or make it even more restrictive, allowing prosecutors to second guess doctors, and making hospitals likely to continue denying and delaying care. Without protecting the judgment of treating physicians, there is no reason to expect Corley’s health exception to improve upon current law.

Kate Cox provided us with an example of why Corley’s health exception would not likely work in practice when she sued the state of Texas to have an abortion because her baby was diagnosed with an almost certainly fatal abnormality and continuing the pregnancy would put her future fertility and health at risk. But Cox wasn’t at imminent risk of death or disability.  

A lower court ruled she should be able to end her pregnancy, but Texas Attorney General Ken Paxton petitioned the Texas Supreme Court to stop her, and threatened legal action against anyone who would treat or help her. Paxton argued Cox’s health was not at great enough risk and she could get an abortion for a fatal fetal anomaly in Florida (which is likely not true, more on that later). The Texas Supreme Court agreed that Cox’s doctor had failed to attest that Cox qualified for the health exception according to “reasonable medical judgment”, which would have exposed the doctor to significant legal liability.  

At issue in Cox’s case and the case brought previously by 22 women denied abortions in Texas, is the difference between a law that leaves whether a risk to health exists to “reasonable medical judgment” versus the “good faith” judgment of the treating doctor.  As the Texas lawsuits show, using the “reasonable medical judgment” standard leads to women being denied care due to the very real fear that a doctor’s actions will be second-guessed after the fact by a prosecutor, another doctor testifying as a prosecution witness, or a licensing authority. Corley’s proposed amendment doesn’t use either standard, because it doesn’t give the determination of whether one qualifies for the “health and safety” or “fatal abnormality” exceptions to doctors in the first place. 

Like Texas, current Missouri law uses the “reasonable medical judgment” standard.  Missouri’s health exception is similar to Texas’ but worse. Missouri requires not just that a patient be at “a serious risk of substantial impairment of a major bodily function,” but that the impairment be substantial and irreversible.

And, lest one think Texas officials are unusually zealous, it is worth noting that our Attorney General Andrew Bailey is currently engaged in a hospital harassment campaign and has sued the FDA to make mifepristone—the drug used for miscarriage management and abortion—unavailable throughout the country. He has claimed it is already a crime punishable by imprisonment to transport mifepristone in Missouri. He has filed briefs reveling in Missouri officials’ past investigations and harassment of abortion providers.  Criminal penalties, anti-abortion officials, and inadequate health exceptions tie doctors’ hands here just as in Texas. 

In a new statement, Corley claims that her amendment would protect Kate Cox. This is false. Women with the same diagnosis as Cox’s baby, Trisomy 18, have been denied abortions in states like Alabama and Florida that have nominal exceptions for fatal abnormalities like Corley’s.  

Cutoff to “fatal fetal abnormality” exception and undefined “viability”

The typical voter likely expects Corley’s “exception for fatal abnormalities” to apply at any point that aspiring parents find out their baby will not survive, but it does not.    

Since the fall of Roe, stories have abounded of women being forced to go out of state to end dangerous pregnancies or carry babies they knew would die to term.  As Nancy Davis, who was unable to end her pregnancy in her state when she learned her baby had no skull, put it, “Basically, they said I had to carry my baby to bury my baby." 

Corley claims that her “fatal fetal abnormality exception ending at viability aligns with Ohio, Michigan and Florida’s amendments.” This is false.  

Corley’s viability provision is not at all comparable. You might think that a fetus with a fatal abnormality is not “viable,” but Corley’s amendment uses the term as a point in time at which the right to end a pregnancy with a lethal anomaly ends. She has repeatedly described this as “about halfway through pregnancy.” 

The Ohio amendment, on the other hand, defines viability as: 

”when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.” 

Contra Corley, the Ohio amendment does not permit the legislature to pick a point in pregnancy after which one can be forced to carry a baby who will not live.  The Ohio amendment says such a pregnancy is not viable. The Ohio amendment is doubly protective because it establishes a right to an abortion after viability when necessary to protect one’s health in the judgment of the treating physician. Requiring a patient to carry a pregnancy with a fatal abnormality imposes all the physical risks of pregnancy with no hope of the reward—a surviving baby. It also endangers a patient’s mental health to endure what families who have experienced this have called “torture.”

Corley has noted only a reported 1% of abortions occur after viability. She argues her amendment is a floor not a ceiling, and thus a future legislature could add more protections. But it’s not a sturdy floor given that her amendment does not contain any definition of “viability.”  

Corley has pointed to the current Missouri statute that defines viability as when an “unborn child” can be sustained indefinitely outside of the womb via “artificial life-supportive systems.” But her amendment leaves the legislature free to redefine viability more in line with the preamble to our current abortion ban, which says “the detection of a heartbeat in an unborn child is a reliable indicator of a viable pregnancy.” In other words, once an electrical pulse can be detected at 6 weeks, a pregnancy would be “viable.” 

Even if the floor stays where Corley thinks it is, it still has the potential to undermine other constitutional protections.  The 22 women suing the state of Texas have argued that denying care to women with dangerous and doomed pregnancies violates the rights to life, liberty, and equality in the Texas constitution.  What does putting an explicit end to a pregnant person’s right to life-saving abortion do to her rights to life and liberty under the Missouri constitution? 

12-week cutoff

Corley’s 12-week cutoff is unfair and unreasonable for all abortion seekers because those who do not want to be pregnant prefer to have abortions as early as possible, but are often pushed later by the kinds of abortion restrictions that Corley’s amendment would likely maintain (discussed below).  However, in light of Corley’s purported compassion for women with fetal anomalies, I want to note that a 12-week cutoff is particularly inappropriate because it coincides with the 12-week ultrasound.  When aspiring parents get concerning news at the 12-week scan it is often just the beginning of a painful and frightening process of waiting and meeting with specialists in order to get a diagnosis and understand what it is likely to mean.  

Maintaining Missouri’s existing abortion laws

Corley’s claim to be making abortion accessible up to 12 weeks is also misleading. First of all, she appears not to have consulted with any potential abortion providers, obgyns, or their legal counsel about whether her amendment would provide enough legal protection for anyone to attempt to run an abortion clinic in this state, provide abortions in-office, or for hospitals to more readily provide abortions.

Secondly, her proposed amendment has a provision that appears to protect anti-abortion laws still on the books in Missouri known as “targeted regulation of abortion providers” (aka TRAP laws), which are burdensome and medically inappropriate regulations that made it nearly impossible to get an abortion here even when Roe was still the law. Her provision reads:

Nothing in this section shall be construed to repeal any law existing at the time of its passage unless such existing law directly conflicts with any provision of this section. 

Corley told the Kansas City Star that her amendment does not grandfather in TRAP laws. She claims TRAP laws would be reviewable in court despite that clause and would be struck down because her amendment imposes a strict scrutiny standard of review, just like other state’s amendments.  

However, her strict scrutiny clause is very weak (discussed below) and other states do not have her clause about only repealing laws that “directly conflict.” A court will read that clause to do something–otherwise it would not have been included. 

Corley has called concern about this provision "fake news" and suggested it merely states the obvious that the amendment does not repeal specific statutes. But that is not how “repeal” is used in the sentence above.  It says some laws are “repealed,” in the sense of invalidated—those laws that “directly conflict.”  All other existing abortion laws are explicitly not invalidated. 

Corley’s own lawyers have argued in her lawsuit challenging the ballot summary language that the amendment would “[m]aintain Missouri’s existing statutory framework relating to abortions, except where the existing laws directly conflict.” They have also implied that only new laws will be subject to strict scrutiny, writing in the future tense that it will apply “to any law proposing” to restrict rights established by the amendment.

Undefined strict scrutiny standard

Corley’s strict scrutiny standard is not defined like those in the amendments adopted by Ohio and Michigan and proposed here by Missourians for Constitutional Freedom. It is thus likely to provide much weaker protection.

Corley has said:

“In crafting our amendment, we looked to the Missouri Constitution, to see if strict scrutiny had been applied in any other context. And it had. To guns.  

So that’s what we used. We employ the same strict scrutiny clause that protects Missourians’ second amendment rights.”

It is a baffling choice to grab the language in a gun rights provision that has never been applied by a Missouri court rather than looking to the decades of federal and state cases reviewing abortion restrictions under differing standards of review, or the models provided by amendments adopted in other states.

In multiple statements, Corley has bizarrely suggested that it doesn’t really matter what the words of her amendment say, writing “No matter the words in a constitutional provision imposing strict scrutiny, in the end, it is up to a court to apply the standard of review to a particular law or regulation. There is no constitutional amendment that will guarantee a court will invalidate a particular law.” 

In fact, courts decide cases based on what words in laws say. And you can absolutely write a constitutional amendment to invalidate a particular law—that is typically the point.  An amendment protecting abortion rights needs to be the most robust tool possible for going into court to strike down restrictions of all kinds passed by a hostile legislature.  

To sum up

I have asked Corley many questions over many months about her initiative proposals that she has refused to answer or have her attorney, Chuck Hatfield, answer. She has sent non-answers and pointed me to three legally garbled statements on her website:

https://www.missouriwomenandfamilyresearchfund.org/letter
https://www.mowomenandfamilyresearchfund.com/fact-check
https://www.mowomenandfamilyresearchfund.com/kate-cox

I am on record as a believer that you do not need to be a lawyer to understand legal issues.  It takes a lot of effort for lawyers and non-lawyers alike, especially with something as complicated as medical care and as controversial as abortion.

It’s possible Corley has good intentions, but a misguided understanding of law. Corley’s statement about Kate Cox quotes an article by Mary Ziegler that argues state abortion laws are not about protecting life, but about criminal punishment. To Ziegler’s correct observation that exceptions don’t work and aren’t meant to, Corley responds:

“That is absolutely true. When drafted by anti-abortion extremists, exceptions do not work.”

Corley appears to think her intentions and self-identification as “not an extremist” make her exceptions regime different than those of Missouri and other states that deny abortion care to patients in need every day. Unfortunately, that is not how laws work.