Voters Ended This State's Abortion Ban. Then Conservative Judges Got Involved.

Yahoo

2 days ago

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Missouri voters in November chose to pass a ballot measure establishing reproductive rights in a state with one of the strictest abortion bans in the nation. Last week, because of a decision by the Missouri Supreme Court, abortion is again unavailable in the state. What happened won't necessarily last, but it's reminder that ballot measures won't always be enough to protect reproductive rights.
Within days of the passage of Amendment 3, Planned Parenthood and other plaintiffs challenged the vast array of bans and restrictions in the state. Missouri not only banned virtually all abortions from the moment of fertilization but also enforced a variety of what are called TRAP (targeted regulation of abortion provider) laws. Clinics must have admitting privileges at a hospital within 15 miles and comply with state licensure rules and the rules governing ambulatory surgical centers. Other rules make patients wait 72 hours before getting an abortion or prohibit the decision to have an abortion for certain reasons. These laws made a big difference in dismantling abortion access even before the overturning of Roe. At one point, Missouri had more than 25 clinics. Before the state's absolute ban went into effect, only one remained open.
In rulings handed down in December and February, a judge in Jackson County, Missouri, Jerri Zhang, blocked most of the TRAP laws ahead of a trial scheduled for early 2026. Abortions soon resumed in the state, even if access remained limited. Only three clinics opened, and these facilities performed only a handful of surgical procedures before the state Supreme Court's order was issued.
The attorney general, Andrew Bailey, one of the most committed abortion opponents in the nation, appealed directly to the state Supreme Court, seeking a special order called a writ of mandamus. He agreed that the state's absolute ban couldn't survive under Amendment 3, but argued that other restrictions—the TRAP laws—were different because they protected women from dangerous procedures. He also argued that women wouldn't be harmed if every clinic in Missouri shut down because they could get abortion pills online or travel out of state.
The state Supreme Court allowed the restrictions to go back into effect, all because of a technicality—the trial judge had applied an older standard for granting a preliminary injunction that asks whether the plaintiffs have a fair chance of succeeding. Missouri courts, since 2008, have followed a more demanding standard set forth by the 8th Circuit Court of Appeals focused on whether a plaintiff is likely to succeed at trial. Because the trial court cited the wrong case, abortion in Missouri came to a stop. The three open clinics canceled appointments and counseled patients on how to go out of state.
This is hardly a fatal blow for the plaintiffs. The judge may well already believe that the plaintiffs are likely to succeed, and the plaintiffs might have a relatively easy time making that case. Amendment 3 provides broad protections for reproductive rights, requiring not only that a state law serves a compelling interest but also that the government uses the least restrictive means of achieving its goal. And the state can't discriminate against abortion by treating it differently from other medical procedures. The judge might conclude that there are less restrictive and more effective ways of protecting maternal health, or that TRAP laws don't do much to improve patient health at all, as the U.S. Supreme Court did before Roe was overturned in a case about similar Texas regulations.
But what is happening in Missouri is still a sign about the limits of ballot measures. Missouri Republicans already have crafted a new ballot measure that voters will face, most likely in 2026. The proposal asks Missourians whether they want to 'ensure women's safety during abortions,' 'ensure parental consent for minors,' and 'allow abortions for medical emergencies, fetal anomalies, rape, and incest.' It would ban all abortions from fertilization in every other case—a fact that it doesn't advertise. For good measure, it also asks whether voters want 'to protect children from gender transition,' even though gender-affirming care for minors is already illegal in the state. That voters adopted Amendment 3 less than a year ago is doing nothing to dissuade the state GOP.
The ballot effort may fail. Republicans in other states have a poor track record when they ask voters to make it harder to pass ballot measures. If politicians ignore a result that voters just reached, that might not be popular either.
But abortion opponents in the state will have a way forward even if Republicans' latest gambit fails. The attorney general can argue that any abortion restriction should survive, even under Amendment 3, just as he has with the TRAP laws. He could repeat that abortion hurts women, or that the state has a compelling interest in protecting fetal life. The attorney general may even seek to establish that an embryo or fetus has constitutional rights.
Five of the court's seven supreme court justices were nominated by Republicans, including four selected by the current governor, Matt Blunt, who has made his opposition to abortion central to his political career. The court barely allowed Amendment 3 on the ballot, choosing to do so by a margin of 4 to 3. Voters just ensured that two of the three dissenters will serve another 12-year term.
State judges, not voters, are ultimately the ones who will decide what Amendment 3 means. They won't have much fear, when they face retention elections, that an unpopular vote will matter. State judicial incumbents have a high rate of success; the two judges Missourians just retained won well more than 60 percent of the vote.
As long as Missouri elects Republican governors and retains judges regardless of their rulings, the Missouri Supreme Court will become more conservative, and Republicans will experiment with new restrictions and bans to see what the state Supreme Court will tolerate. All of this makes Amendment 3 a cautionary tale, even if the effects of the state Supreme Court's latest rulings will only be temporary. For supporters of reproductive rights, ballot measures like Amendment 3 are critical, but what happens after the vote is just as important.