Legal abortion on paper, but not in practice: breaking down Jamie Corley’s Missouri ballot proposal
Jamie Corley and her new organization, Missouri Women and Family Research Fund, have begun collecting signatures for a ballot initiative that Corley claims would make abortion available in Missouri up to 12 weeks of gestation with “extended exceptions” for threats to health, rape, incest, and fatal fetal abnormalities. However, if we look at the actual text of her proposed constitutional amendment, it is unlikely to create the conditions for someone to actually access legal abortion care even in the narrow circumstances where Corley thinks abortion should be permissible.
What follows is a breakdown of the likely legal and practical effect of Corley’s provisions in the order they appear in the proposed amendment. To summarize three of the most problematic provisions:
● Grandfathering of TRAP laws: Subsection 7 protects laws known as “Targeted Regulation of Abortion Providers,” which are regulations that were used to make abortion care unavailable in Missouri and other anti-abortion states when it was still ostensibly legal under Roe. Missouri’s TRAP laws include requirements that providers have hospital admitting privileges and that simple, early medication abortions and procedural abortions only be provided in inappropriate and expensive ambulatory surgical centers. If these laws stand, there is little reason to believe that anyone will be willing to attempt to operate an abortion clinic here, nor that hospitals will provide and train residents in abortion.
● Loophole allowing prosecution of doctors: Corley states in her press release that doctors would be protected from criminal and civil penalty, but subsection 8(b) limits the prohibition on criminal and civil penalties to inducing an abortion “as provided for in this section.” This means that a medical provider could be prosecuted if, in the view of law enforcement, the patient did not qualify for one of the amendment’s abortion exceptions. A prosecutor could allege that an abnormality was not fatal, the threat to a patient’s health was not great enough, the patient did not properly report her rape, or the pregnancy was more than 12 weeks gestation. This is likely to cause hospital officials to deny or delay care and deter clinics from operating in Missouri.
● Health endangerment and fatal abnormality exceptions end at “viability”: Section 4 explicitly ends a patient’s right to a health or lifesaving abortion at viability. This is less protective of patient health than Missouri’s current near-total ban. Subsection 4 also explicitly denies a right to end a pregnancy with a fatal fetal anomaly after “viability”, (used in the sense of the point in pregnancy when a fetus is typically viable, rather than when a fetus is actually viable). This would enshrine in the Missouri constitution the legislature’s ability to require a woman carry a baby to term that she knows will die.
Before we get into the weeds, some background and disclosures:
I am a lawyer with a background in abortion rights litigation, and a writer who has covered developments in reproductive rights law extensively. I’m a supporter of a different ballot initiative, the Reproductive Freedom Initiative (“RFI”), proposed by Anna Fitz-James and Missourians for Constitutional Freedom. I have explained how the RFI would work and why I support it here and here.[1] I’ve worked on the RFI effort pro bono, including assisting with an amicus brief filed by the League of Women Voters in Fitz-James v. Ashcroft, the litigation over the ballot summary language.
I first met Jamie Corley when she reached out to me after I published the article here.[2] We had coffee twice and talked about abortion, but she did not share that she was preparing to file initiative petitions. After Corley filed her petitions, she said she would meet me for an on the record discussion. When she arrived, she said she would only talk off the record, but would answer questions if I sent them in writing.
I sent the questions, and she declined to answer them, instead referring me to a largely non-responsive (and, at points, flippant) open letter that she wrote in response to a statement criticizing her proposals from Dr. Jennifer Smith of Missouri Healthcare Professionals for Reproductive Rights. I have corresponded with Dr. Smith about these issues and I spoke about how abortion restrictions impacted my own pregnancy at an event hosted by MHPRR. I have referenced Corley’s letter (“letter to Dr. Smith”[3]) below, but I recommend everyone read it themselves. Given that Corley is trying to amend the Missouri constitution, I think she has an obligation to answer questions about her proposed amendment, but the analysis below is based on the proposed amendment’s text.
I may update the breakdown below with additional information and citations. As with my write-up of the RFI, I welcome questions and pushback.
Text of Corley’s ballot proposal, Initiative Petition 2024-134, with discussion of the bolded subsections:
NOTICE: The proposed amendment revises Article I of the Constitution by adopting one new section to be known as Article I, Section 36.
Be it resolved by the people of the state of Missouri that the Constitution be amended as follows:
Section A. Article I of the Constitution is revised by adopting one new Section to be known as Article I, Section 36 to read as follows:
Section 36. 1. The state shall not deny or interfere with the fundamental right to refuse to have an abortion.
2. The state shall not deny or interfere with the fundamental right to refuse contraceptives.
3. Notwithstanding any other provision of law to the contrary, no taxpayer funds shall be directed, appropriated, or used in support of the provision of abortion in this state. This subsection does not authorize the general assembly to refuse to appropriate funds to a health care provider in this state if such health care provider performs abortions.
This appears to bar a patient receiving Medicaid whose life is at risk or who is pregnant as a result of rape from using her health insurance to pay for an abortion. This is a broader ban on Medicaid funding than that under federal law in the Hyde Amendment, which allows for funding in cases of rape, incest, and threat to the life of the patient.
This is a broader ban than under Missouri law which currently permits funding for lifesaving abortions, and previously allowed funding for victims of rape and incest when abortion was legal. Even if superseded by federal law in particular cases, this provision is detrimental because it would eliminate the possibility of a future legislature allowing low-income women to use Medicaid to pay for abortion care. The time needed to find the money to pay for an abortion is a common reason why women are not able to have abortions as early in pregnancy as they would prefer, including before 12 weeks gestation.
The provision that “[t]his subsection does not authorize the general assembly to refuse to appropriate funds to a health care provider in this state if such health care provider performs abortions” is presumably meant to keep this subsection from being used to argue that the new funding ban it imposes gives the legislature the ability to prohibit Medicaid payments for non-abortion services provided by Planned Parenthood or other abortion providers, but it does not actually add any protections to existing law. In other words, it does not protect against the legislature’s ongoing attempt to bar Medicaid payments to Planned Parenthood that is currently being litigated.
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.
Application before “viability”
The proposed amendment does not specify who has authority to determine if an abnormality is fatal, nor by what standard that determination should be made. This invites second guessing by prosecutors (discussed further below) and will cause hospital officials to deny or delay care.
Furthermore, as Dr. Smith pointed out in her statement about Corley’s proposals, many abnormalities are not fatal at birth but will consign a child to a life of pain and constant medical interventions without the possibility of surviving to adulthood. Families in this situation may experience medical bankruptcies and harm to their other children.
The proposed amendment also does not specify what qualifies as a “risk to the health or safety of the female seeking the abortion” that would qualify a patient for abortion care after 12 weeks, but before viability, nor who has the authority to make the determination. Because all pregnancies entail risk to the health of the patient, but this is framed as an exception in the context of the amendment, “risk to the health” must be interpreted as some more narrow category of harms. This leaves the legislature free to define “risk to health” so narrowly or vaguely that patients with dangerous complications will continue to be denied care in Missouri.
Corley declined to tell me whether she understands her health exception to allow abortion in more circumstances, fewer circumstances, or the same circumstances as the emergency medical exception under current Missouri law.
In her letter to Dr. Smith, Corley claims the decision as to whether a pregnancy poses a “risk to health or safety” would be left to the doctor, but, in fact, any protection for the judgment of the medical professional is conspicuously absent from her proposed amendment.
Application after “viability”
This provision explicitly denies protection for life and health saving abortions after viability. It is therefore less protective than Missouri’s current near-total abortion ban which does permit abortion in medical emergencies throughout pregnancy (though patients have been denied care where doctors and hospitals have not believed they have sufficient legal protection in such circumstances).[4]
It is well documented that patients in abortion ban states are being forced to give birth to babies who will not survive. For example, women forced to continue dangerous or doomed pregnancies have sued the state of Texas.[5] Experts believe Texas’ 10% increase in its infant mortality rate in 2022 is largely attributable to patients being unable to end pregnancies with severe anomalies.[6] The infant mortality rate in Missouri increased 16% in 2022.[7] Corley’s proposed amendment’s explicit denial of protection for fatal fetal abnormalities in combination with the explicit denial of protection for the patient’s health would permit the state to force women to endure the risk to health and trauma of having to carry babies they know will not survive to term.
One would argue that in cases of fatal abnormalities viability has not occurred, but abortion law and hospital policies have typically treated viability as a point in pregnancy. A court, prosecutor, or hospital attorney would likely read “viability” here to mean a gestation rather than a fetal diagnosis because the cutoff for the right to terminate a pregnancy with a fatal abnormality would be extraneous and nonsensical if such pregnancies never become viable as used in the amendment.
Additionally, when the law imposes gestational cutoffs on when an abortion may be performed due to health endangerment and fetal anomalies, patients are forced to terminate wanted pregnancies before the severity of the condition is known.
The denial of protection for incest victims after viability is particularly problematic because incest victims are often children. The patients who need later abortions because they did not realize they were pregnant tend to be the youngest. The explicit denials of protection after viability to incest victims and for risk to health is particularly dangerous for children pregnant as a result of abuse.
a. In the event of a rape or sexual assault, no abortion shall be performed unless the alleged rape or sexual assault has been reported to a rape or sexual assault crisis hotline.
To have a right to the rape exception, a victim must have reported to a “sexual assault hotline.” Corley declined to tell me whether she consulted any hotlines about taking on this role.
The proposed amendment does not specify what qualifies as a hotline, when the report must be made, or how a medical provider can verify a report was made. This invites the legislature to continue its policy of denying abortion to victims of rape by imposing difficult or impossible to comply with reporting requirements.
Taken literally in conjunction with subsection 5, anyone has a right to abortion before 12 weeks gestation except for a rape victim who has not reported to a hotline. Furthermore, a person who reports her rape to the police, but was not aware she must also report it to a hotline would not have a right to an abortion.
In her letter to Dr. Smith, Corley invents a legislative scheme for the rape exception that is nowhere in the text of her amendment. Corley claims a patient could report to any hotline or chat she wished and the doctor could take her word for it and provide the abortion.[8] This suggests a lack of familiarity with the history of abortion legislation and the investigation and harassment of abortion providers by law enforcement, as well as a general lack of understanding of how laws work.
UPDATE: Corley repeated her claim in the Missouri Independent this week that calling a hotline or sending a text would be all that was required of a sexual assault survivor and claimed repeatedly that reports would be confidential.1 She gives no hint as to why she thinks the Missouri legislature would implement the honor system she envisions. But even if it did, reports would not be confidential for everyone as she claims. If a patient who is under 18 tells a provider they have been raped, that triggers mandated reporting requirements:
188.023. Reports of rape or under age eighteen sexual abuse, required to report, how. — Any licensed health care professional who delivers a baby or performs an abortion, who has prima facie evidence that a patient has been the victim of statutory rape in the first degree or statutory rape in the second degree, or if the patient is under the age of eighteen, that he or she has been a victim of sexual abuse, including rape in the first or second degree, or incest, shall be required to report such offenses in the same manner as provided for by section 210.115.
I asked Corley whether there is some reason to think this provision would not apply, and to ask her lawyer, Chuck Hatfield, if she doesn’t know. I asked if she was unaware of this provision or if it was her intention to require a minor to report her sexual assault to the state in order to have an abortion, contrary to her claim that all reports would be confidential. I will update if they get back to me.
5. Notwithstanding subsection 4 of this section, the state shall not deny or interfere with the fundamental right to choose to have an abortion through a gestational age of twelve weeks.
The amendment would not likely result in abortion becoming generally available before twelve weeks due to the operation of subsection 7, and the inadequacy of the bar to prosecution in subsection 8(b), both discussed below.
6. The state shall not deny or interfere with the fundamental right to choose contraceptives.
7. 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.
The proposed amendment would protect the anti-abortion laws currently on the books in Missouri that made abortion care nearly unavailable even before Roe was overturned. According to the CDC, in 2020, 40 or fewer patients were able to obtain an abortion in Missouri before 13 weeks, and only 164 patients were able to have an abortion at all.[9] In Wisconsin and Indiana, states with comparable population sizes, 6,430 and 7,756 people were able to have abortions in 2020.
When the Missouri legislature could not ban abortion outright under Roe, they used a strategy of “targeted regulation of abortion providers” (“TRAP laws”) in which medically unnecessary regulations that are burdensome or impossible to comply with are used to shutter abortion clinics. TRAP laws on the books in Missouri include a requirement that abortion providers have admitting privileges at a hospital, that abortion medication be dispensed in-person, and a mandatory delay period. I asked Corley if she understands a number of statutes including these to “directly conflict” with the proposed amendment, but she declined to answer.
Corley would not tell me whether she believes abortion access in Missouri under Roe v. Wade/Planned Parenthood v. Casey was sufficient or too limited, nor whether she anticipates her amendment would make abortion more or less accessible than it was when abortion was nominally legal.
When the availability of abortion care is limited through TRAP laws, excessive wait times for appointments and travel force patients to have abortions at later gestations, often out of state, to self-manage their abortions, or to carry to term unwillingly.
In her letter to Dr. Smith, Corley claims her amendment’s imposition of a strict scrutiny standard of review will protect against TRAP laws. However, subsection 7’s explicit protection of existing laws suggests that either Missouri’s existing TRAP laws are grandfathered in despite the strict scrutiny standard or that the ill-defined strict scrutiny in subsection 10 is some lesser standard than traditional strict scrutiny, and Missouri’s existing TRAP laws can survive this weaker standard of review.
In her lawsuit challenging Secretary of State John Ashcroft’s ballot summary for her initiative petitions, Corley’s lawyers acknowledge that her amendment would “[m]aintain Missouri’s existing statutory framework relating to abortions, except where the existing laws directly conflict.”[10] They also write “[. . . ] IP 2024-134 does not prohibit government interference in abortions. IP 2024-134 explicitly maintains all state laws that do not contradict with the IP and does not prohibit the general assembly from passing laws in the future that are consistent with IP 2024-134.[11]
8. Notwithstanding any other provision of law to the contrary, no person may be subject to any criminal prosecution or civil penalty:
a. if such person is a pregnant female and induces, seeks, or obtains an abortion in this or any state;
b. if such person is a health care provider performing, inducing, or assisting in the performance or induction of an abortion as provided for in this section; or
c. if such person assists or provides support to a pregnant female in obtaining an abortion in this or any state.
Application to doctors
The prohibition on criminal and civil penalties for medical providers in 8(b) is limited to “induction of an abortion as provided for in this section.” (Emphasis added.) This means a medical provider could be prosecuted if in the view of law enforcement an abnormality was not fatal, the patient’s health was not at significant enough risk, or the patient did not properly report her rape.
Corley seems to acknowledge that doctors could be prosecuted, and threat to health would be merely an affirmative defense (as under current Missouri law) when she writes in her letter to Dr. Smith that:
if a doctor were to perform an abortion and his defense was “my patient had a broken toenail,” then, no, that would be an inappropriate standard of care and he would not have performed a legal abortion under the “health and safety” clause.” (Emphasis added.)
Application to abortion seekers
The wording of 8(a) barring prosecution of someone who “is a pregnant female” introduces uncertainty as to whether a person who is no longer pregnant can be prosecuted. Even assuming a court would read this provision to bar prosecution of someone after she has had an abortion, this invites anti-abortion prosecutors to take advantage of the ambiguity. Prosecutors who have charged women for having abortions have often done so under laws that do not actually apply, causing immense hardship without ultimately being able to get a conviction. Furthermore, 8(a) does not prohibit the most common prosecutions for pregnancy outcomes, where a woman is accused of engaging in behavior, such as drug or alcohol use, alleged to have resulted in an unintended miscarriage or stillbirth.[12]
9. Notwithstanding any other provision of law to the contrary, no taxpayer funds shall be directed, appropriated, or used in support of the criminal prosecution of:
a. any pregnant female for inducing, seeking, or obtaining an abortion;
b. any health care provider for performing, inducing, or assisting in the performance or induction of an abortion as provided for in this section; or
c. any person for assisting or providing support to a pregnant female in obtaining an abortion.
This provision bars the use of taxpayer funds for criminal prosecutions that are already ostensibly prohibited by subsection 8. Because courts are disinclined to interpret legal provisions as being deliberately redundant, this suggests there is some category of prosecution for seeking an abortion that is permissible but subject to funding restrictions. Further ambiguity is introduced by this provision barring taxpayer funding for the “criminal prosecutions'' but not the “civil penalties” barred in subsection 8.
10. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.
While this subsection says strict scrutiny applies, the protection of Missouri’s existing abortion laws in subsection 8 indicates it is a weakened form of strict scrutiny that TRAP laws could survive or that TRAP laws are grandfathered in.
Strict scrutiny usually requires that a law restricting a fundamental right be narrowly tailored to further a compelling governmental interest. The proposed amendment fails to define what the government’s compelling interests are by, for example, limiting the legislature to regulating to further the compelling interest in patient health and safety in accordance with accepted medical standards. This invites the legislature to enact new laws or defend existing ones on the pretext of furthering the interest in health or to further an interest in “potential life.”
Under Roe, the government’s interest in potential life became compelling only at viability. Under Casey, the government’s interest in potential life was compelling from the outset of pregnancy, but regulations furthering that interest had to be calculated to inform one’s decision and could not place an “undue burden” on the right to end a pregnancy before viability. Casey’s “undue burden standard” was weaker than Roe’s strict scrutiny, but strong enough to get TRAP laws purported to further the health interest struck down (even if only after burdensome litigation).
Corley’s amendment would be weaker than even Casey because both existing laws purportedly in the interest of health and laws in the interest of potential life that do not “directly conflict” appear to be exempted from court review. If courts did not interpret the amendment to exempt them from review, the underdefined strict scrutiny standard would still be a lacking tool for attempting to get them struck down.
The proposed amendment’s silence as to the government’s interest would allow the government to assert an interest in protecting potential life that is neither limited to post-viability, as in Roe, nor limited to ensuring a woman’s decision is informed but not unduly burdened, as in Casey.
This will encourage anti-abortion legislators to experiment. For example, the legislature might pass a law requiring a married woman to get her husband’s permission in order to have an abortion (inspired by the Pennsylvania law challenged in Casey); or a law requiring that a person prove she is capable of making the decision to end her pregnancy to a judge (like that on the books for Missouri minors who cannot get a parent’s consent for their abortion); or some innovative law requiring that a pregnant person have multiple counseling sessions or take a course before having an abortion.
The nebulousness of Corley’s standard will encourage legislators to be creative and see what survives review. And, of course, we will only learn what can survive review if abortion providers or other advocates think Corley’s amendment provides sufficient legal protection for it to be worth litigating to try to strike down anti-abortion laws in the first place. Corley declined to tell me, and a reporter for Pitch KC who asked the same question,[13] whether she had discussed her proposed amendment with any potential abortion providers or their legal counsel.
Conclusion
It is not unusual or unreasonable for the casual observer not to understand the difference between abortion being technically legal and being accessible as a practical matter. However, as someone seeking to amend the Missouri constitution, Corley has an obligation to educate herself about how the legal landscape impacts the availability of abortion care, and to honestly describe the likely impact of her amendment to the public.
It is not clear to me whether Corley does not understand that her proposed amendment is unlikely to make abortion available in Missouri or whether she does not actually want abortion to be available. Four of the six petitions Corely originally filed would not have made abortion legal at any gestation except in cases of rape and medical complications. This indicates that giving the average Missourian the ability to decide whether or not to have a child has never been a priority for her, so it is perhaps unsurprising that the initiative petition she has chosen to move forward with is not likely to make abortion care accessible in Missouri, even before 12 weeks gestation. Nor would her amendment likely reverse the trend of obstetrician/gynecologists being unwilling to train and work in Missouri, which she has correctly acknowledged is extremely detrimental to the health of Missourians.
In my opinion, the appropriate place for such limited changes to the law as Corley seeks is the legislature. Corley’s effort is a tacit acknowledgement that the legislators in her Republican party are so unreasonable that even an effort to make abortion legal on paper for rape victims or doomed pregnancies would be futile. There is no denying the legislature’s extreme hostility and indifference to the health and dignity of Missouri women—but that is why we need constitutional protections much more robust than these to restrain it.
[1] Bridgette Dunlap, “Abortion initiative wouldn’t just end the cruelty of Missouri ban. It would be a new world,” The Missouri Independent, May 26, 2023; Bridgette Dunlap, “Missouri's abortion ballot initiative proposals, a deep dive,” Substack, May 26, 2023.
[2] Bridgette Dunlap, “Missouri AG doesn’t want the public to know he’s pushing wild legal theories in abortion cases,” Missouri Independent, April 7, 2023.
[3] Jamie Corley, Missouri Women and Family Research Fund, letter to Dr. Jennifer Smith, Missouri Healthcare Professionals for Reproductive Rights, September 11, 2023, available at https://www.missouriwomenandfamilyresearchfund.org/letter.
[4] For example, when Mylissa Farmer’s water broke at 18 weeks, doctors at a Missouri hospital recommended an abortion but said they could not provide it until her vitals plummeted, infection set in, or the fetus’ cardiac activity ceased. She was denied care despite having, as her medical record noted, “risks of maternal thrombosis given her history of (deep vein thrombosis during a COVID-19 infection), infection/sepsis, severe blood loss, hysterotomy, hysterectomy and even mortality.” Susan Szuch, “Investigation finds MO, KS hospitals violated federal law by denying Joplin woman abortion”, Springfield News-Leader, May 1, 2023. There have also been reports of Missouri doctors waiting to treat ectopic pregnancies, which are never viable and always life threatening, until patients had unstable vital signs or falling hemoglobin levels indicating blood loss. Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape, 35 J. Am. Acad. Matrim. Law. 277-87 n 228 (2022).
[5] Paul J. Weber, “Texas women denied abortions give emotional accounts in court, ask judge to clarify law”, Associated Press, July 19, 2023; Zurawski v. State of Texas.
[6] Jacob Knutson, “Report: Texas' strict abortion ban linked to over 10% spike in infant deaths,” Axios, July 20, 2023.
[7] Jack Suntrup, “Missouri one of four states to show significant increase in infant mortality,” St, Louis Post-Dispatch, Nov. 2, 2023.
[8] Corley wrote in her letter: “Any rape or crisis hotline qualifies. That includes state, local and national phone, chat, and web-based sexual assault hotlines. As is standard procedure with most hotlines, reports can be made confidentially and anonymously and victims do not have to report the name of their abusers. Doctors are not the gatekeepers of the reporting requirement; but if the doctor wants to make a note in the medical record that they discussed the reporting element, that would comply with the law[.]”
[9] Centers for Disease Control, Abortion Surveillance — United States, 2020, Surveillance Summaries, Nov. 25, 2022. Only 150 people were able to obtain abortions in Missouri in 2021. Centers for Disease Control, Abortion Surveillance — United States, 2021, Surveillance Summaries, Nov. 24, 2023.
[10] Corley v. Ashcroft, Complaint at 3.
[11] Id. at 16.
[12] Pregnancy Justice, The Rise of Pregnancy Criminalization at 3 (“The cases show that pregnancy outcomes other than abortion, including birth and pregnancy loss, have been far more likely to result in criminalization, most often under the guise of addressing pregnancy and substance use.”).
[13] Barbara Shelly, “Time Sensitive: Missouri abortion petition efforts remain in limbo,” Pitch KC, Nov. 20, 2023.
Anna Spoerre, “Missouri rape hotline reporting requirement in abortion-rights petition draws criticism,” Missouri Independent, November 27, 2023. (In featuring the perspectives of sexual assault survivors on Corley’s proposed amendment, the article illustrates why even Corley’s imagined honor system would be harmful.)