A state appeals court will hear arguments Wednesday over whether Missouri Republicans erred in how they drafted a constitutional amendment banning abortion that voters will see on next year’s ballot.
Last year, voters enshrined the right to abortion in the state constitution. The GOP-dominated legislature responded six months later by voting to put a new constitutional amendment on the ballot that would reimpose an abortion ban.
Proponents of abortion rights filed a lawsuit in July arguing that the summary of the proposed abortion ban amendment that will appear on ballots was intentionally deceptive because it failed to state the amendment would repeal the abortion rights amendment. A Cole County judge agreed, in part, and ordered Secretary of State Denny Hoskins to rewrite it.
On his second attempt, Hoskins crafted a summary that Judge Daniel Green deemed “fair and sufficient.”
But attorneys representing Dr. Anna Fitz-James — who submitted the language for the reproductive rights initiative petition in 2023 — believe Green was too hasty in giving the language the OK, arguing the current language “fails to tell voters that a right is being eliminated and replaced with fewer rights.”
They filed an appeal of Green’s ruling, which will be argued before the Western District Court of Appeals Wednesday afternoon in Kansas City.
The Missouri Attorney General’s Office, which is representing Hoskins, said the court doesn’t need to determine if the current ballot language is the best wording possible, “but whether it gives the voter a sufficient idea of what the proposed amendment would accomplish.”
The ballot language reads:
“Shall the Missouri Constitution be amended to:
- Guarantee women’s medical care for emergencies, ectopic pregnancies and miscarriages;
- Ensure women’s safety during abortions;
- Ensure parental consent for minors;
- Repeal Article I, section 36, approved in 2024; allow abortions for medical emergencies, fetal anomalies, rape, and incest;’
- and Prohibit sex-change procedures for children?”
If approved by a majority of voters, the abortion ban amendment would be slightly less restrictive than the near-total ban implemented in June 2022. Unlike the prior ban, it would allow abortions for survivors or rape or incest up to 12 weeks gestation, though it is not clear if or how a survivor would need to prove the assault in order to receive medical care.
All other abortions would be banned, aside from cases of medical emergencies.
Attorneys Chuck Hatfield and Tori Schafer, in briefings to the court of appeals on behalf of Fitz-James, argue the proposed amendment is a “mess” and violates a statute that prevents ballot measures from encompassing more than one subject. They are asking the higher court to remove the amendment from the ballot or re-write the summary.
The crux of the issue, they say, is that gender-affirming health care is separate from reproductive health care. Including a ban on gender-affirming care for minors, they say, “logrolls” two unrelated subjects to make the amendment more popular. Gender-affirming health care for minors is currently banned in Missouri, though a challenge to the law is before the state supreme court.
The attorney general’s office on behalf of Hoskins said Fitz-James’ interpretation of the single subject rule is too narrow. Gender-affirming health care, they contend, includes “procedures that frequently render children sterile.”
Fitz-James’ attorneys said assuming gender-affirming surgeries always involve reproductive organs is flawed.
“A wide variety of surgeries accomplish that purpose — from breast augmentation to hair reconstruction—that never implicate a reproductive organ,” they wrote.
Fitz-James’ attorneys argue the current wording “obscures” the fact that the proposed amendment would ban most abortions by making it sounds as if the abortion rights it keeps in place would be new, rather than rights that are already protected.
Most voters, they argue, will have no idea what Article 1, Section 36 of the Missouri Constitution is.
“The words ‘approved in 2024’ are similarly devoid of context or meaning,” Fitz-James’ attorneys wrote in court filings. “Approved by whom? Some random bureaucrat? The legislature? Good Housekeeping? The voter is left to wonder.”
The attorney general’s office argues Missourians should be given more credit when they show up to the polls.
“Voters are certainly intelligent enough to know that ‘random bureaucrat[s]’ and ‘Good Housekeeping’ do not approve constitutional amendments,” the attorney general’s office wrote.
Court filings briefly delved into the use of a semi-colon in the fourth bullet point, with attorneys for Fitz-James lambasting its misuse while the attorney general’s office called on grammar gurus Strunk and White to defend the punctuation.
However the court of appeals rules, the case will almost certainly end up in hands of the Missouri Supreme Court.
