Missouri's Historic Abortion Victory Is Crumbling Before Our Eyes

Yahoo

3 days ago

Just a few months ago, Missouri voters approved a ballot measure to protect abortion rights. That measure, known as Amendment 3, added a 'reproductive freedom' amendment to the state constitution. It was crafted to offer stronger legal protections for abortion than existed under Roe v. Wade, according to campaigners, and to end the state's near-total abortion ban, which had been triggered by the Supreme Court's 2022 decision to overturn Roe. Those who voted for it believed that the amendment would allow them to override such past anti-abortion court rulings and to block anti-abortion lawmakers' future efforts—in essence, to reclaim their own rights and political voice. But as of May 27, by way of a two-page order from the state's Supreme Court, the abortion ban voters had been told they defeated was back.
The ruling came as a 'surprise' to pro-choice and anti-abortion groups alike, the Missouri Independent reported this week. With it, the Supreme Court of Missouri has effectively allowed the state to enforce a raft of anti-abortion laws that had been challenged by two Planned Parenthood affiliates, which argued that such laws now violated the state constitution, thanks to Amendment 3. After last week's ruling, Planned Parenthood health centers in the state—Missouri's only abortion clinics—canceled upcoming appointments and advised patients that they could instead go to neighboring Kansas or Illinois, where abortion is legal. For now, those patients, and any Missourian who needs an abortion, have found themselves right back where they would have been had Amendment 3 never been on the ballot.
The sudden loss of abortion access is an inarguable blow for Missouri's reproductive rights movement. But it's also something more troubling: a sign of flaws in the post-Roe strategy chosen by large national reproductive rights groups like Planned Parenthood and state chapters and affiliates of such groups, including the ACLU and Reproductive Freedom for All (formerly NARAL). For these groups, abortion rights ballot measures have been seen as a path forward in a hostile legal environment, a way to restore access without relying on the courts. Campaigns would go direct to the people, giving energized supporters a tangible goal to work toward, along with some optimism, amid an otherwise crushing assault on reproductive freedom and bodily autonomy. The speed with which Missouri's ballot measure has gone from being a historic victory to yet another legal battle reveals that such election night wins may prove to be far more qualified and complicated to hold onto than campaigners had hoped.
For some advocates in Missouri who had worked on Amendment 3, however, there was nothing all that surprising in the state Supreme Court's ruling. They saw it as a reality check. 'There is no way to responsibly sugarcoat what's playing out in the state,' the What's Next for Missouri coalition told me in a statement from the group. The coalition was founded by longtime Missouri reproductive justice advocates, as well as former staff of Planned Parenthood affiliates in Missouri who quit over their concerns about the ballot measure. 'Amendment 3 was a limited and symbolic win,' the coalition said. 'In reality, it has failed to protect pregnant people's bodily autonomy. Inaccessible abortion is just the tip of the iceberg.'
Voters in Missouri may have declared that abortion was their constitutional right, but abortion was not going to return overnight to Missouri. In November, state Attorney General Andrew Bailey offered his legal opinion on which anti-abortion laws might still be enforceable. After stating that Amendment 3 'just barely' won by a 'tight margin,' he opined that 'the result may be very different if a future constitutional amendment is put up for a vote,' and detailed circumstances in which he believed some of the laws could still be enforced. In other words, he was not going to accept that Amendment 3 automatically invalidated state anti-abortion laws—and to be fair, the Amendment 3 campaign seems to have anticipated just such a reaction.
Not long after the election, the two Planned Parenthood affiliates that have health centers in Missouri challenged many of those laws as 'presumptively unconstitutional,' citing Amendment 3. Their petition, filed in the circuit court of Jackson County by Planned Parenthood Great Plains and Planned Parenthood Great Rivers-Missouri, also requested that the court temporarily block such laws while the case played out. That included the total abortion ban triggered after Roe, as well as laws meant to restrict abortion access even if it were not technically banned, such as mandatory waiting periods and mandatory ultrasounds. In a pair of rulings in December and February, Judge Jerri Zhang granted the affiliates' request for a temporary injunction on most of those laws, after which Planned Parenthood clinics in Missouri began to offer abortion again, with significant limits: only procedural abortion up to 12 or 13 weeks, no medication abortion, in just three clinics across the entire state, operating at limited capacity. Other restrictions remained, including some that were not part of Planned Parenthood's challenge. Mandatory parental involvement laws were later challenged by the practical abortion support organization Right By You, in April. There were also restrictions that Amendment 3 did not touch: The ballot measure allows for abortion to be banned past fetal viability, the legal line after which a fetus is thought to be able to survive independently. This means that people having later abortions were left out of the promises of Amendment 3 from the start.
Missouri Attorney General Bailey appealed Judge Zhang's decision, seeking to block abortion in the state during the court challenge—an appeal enabled by a new law giving the state attorney such power to sue to halt injunctions, signed just days before. Meanwhile, the Missouri General Assembly voted to put a new abortion ban on the ballot, an effort to overturn Amendment 3. The constitutional right protecting abortion that voters believed they had succeeded in installing was being rapidly undermined across multiple fronts—by the state attorney general, in the courts, and in the legislature.
This legal undermining depends in part on voters not knowing that it's even happening. The proposed anti-abortion ballot measure language did not refer to Amendment 3, nor to banning abortion, hiding its ban behind claims of ensuring women's 'safety during abortions.' For good measure, it added a ban on gender-affirming care for minors—care that is currently banned in the state. Democrats in the state legislature had tried to block the anti-abortion ballot measure proposal from advancing, but Republicans broke their filibuster with 'a rare procedural maneuver to shut down debate and force a vote on a measure that would repeal Amendment 3,' as St. Louis Public Radio reported.
Amendment 3 campaign leaders forcefully denounced both the new ballot measure and the legislature's underhanded attempt to reverse the will of Missouri voters. 'This deceptive amendment is a trojan horse to reinstate Missouri's total abortion ban,' Tori Schafer, director of policy and campaigns at the ACLU of Missouri, said in a statement. At protests on the steps of the state Capitol in Jefferson City, Amendment 3 supporters were now fighting to hang onto their victory, as they have had to many times this session. 'This past November, more than 1.5 million Missourians made their voices heard at the ballot box,' Mallory Schwarz, executive director of Abortion Action Missouri, said. 'Missourians are used to fighting back and are prepared to keep showing up.'
Two weeks later, abortion access in the state would be all but nonexistent again, after Missouri Supreme Court Chief Justice Mary Russell ordered Judge Zhang to vacate her temporary injunction and to reevaluate the Planned Parenthood affiliates' request, this time using a stricter standard. The ACLU of Missouri, which is co-counsel in the legal challenge, told The New Republic that it had 'immediately' responded to the order by sending correspondence to the court, 'highlighting that our arguments met this standard.' Tom Bastian, ACLU of Missouri director of communications, added that while the group 'can't predict when the court will act, we anticipate new orders … granting the preliminary injunctions blocking the ban and restrictions, once again allowing Missourians access to abortion care.'
For now, then, those Missourians will be doing what they did before election night, before Dobbs: going out of state or self-managing their abortion with pills. In this, the reality for abortion in Missouri looks a lot like it did back when the near-total ban passed. The difference is that now more than $30 million has been spent on a ballot measure meant to reverse that ban.
As the legal scholar Mary Ziegler pointed out this week, it is possible that Missourians' abortion rights will prevail, that Planned Parenthood will get its injunction, or even that the new anti-abortion ballot measure may fail. However, as she wrote, 'what is happening in Missouri is still a sign about the limits of ballot measures.' Advocates in other states should be asking: What is such a 'win' worth?
The legal battle over Amendment 3 is nothing new, as Planned Parenthood's initial filing in this legal challenge acknowledged. 'The State of Missouri has spent decades attempting to eliminate or severely reduce abortion access,' its petition stated. 'This means that Plaintiffs have spent decades challenging these laws.' The lengths that Missouri lawmakers have been willing to go since the election, unfortunately, indicate that this is not a fair fight in fair courts. 'It's time for simple honesty,' What's Next said to me this week. People will have unreliable and irregular access to abortion 'until we shift power away from fascist politicians.'
The reality is that this fight for the constitutional right to abortion was playing out at the same time that our constitutional rights were being ignored and undermined on a regular basis. Before we fundraise millions more dollars to replicate the fight in other states—fundraising that will be justified as 'restoring' access to abortion by making it a right—we might consider other, more immediate ways to give people what they need. That money might be better spent on paying for actual abortions, as abortion funds across the country do, helping people in the many states with abortion bans to access care. In a legal system that cannot be counted upon, there may be no more direct way of supporting a fundamental right.