Missouri Attorney General Andrew Bailey has acknowledged that the state’s strict ban on most abortions will no longer be enforceable after a voter-approved amendment protecting abortion rights goes into effect on Dec. 5.
But while that admission in court filings from Bailey effectively ends one of the strictest abortion bans in the country, he’s arguing that other abortion restrictions should stand.
Missourians backed Amendment 3 earlier this month, which places language in the state constitution protecting abortion until fetal viability — usually around 24 weeks of pregnancy. The measure also allows for abortions beyond that point to protect the life, health or mental health of the mother.
The day after the election, Missouri’s Planned Parenthood affiliates filed a lawsuit in Jackson County to strike down the state’s ban on most abortions when Amendment 3 goes into effect on Dec. 5. The lawsuit also targets other abortion restrictions, including a 72-hour waiting period, requirements that doctors have admitting privileges with hospitals, a ban on using telemedicine for abortion care, and licensing guidelines for abortion clinics.
Bailey filed a 142-page response to Planned Parenthood’s lawsuit on Monday, which references a letter sent to Gov.-elect Mike Kehoe conceding that the state’s near total ban on abortion won’t be in effect anymore because of Amendment 3’s passage.
“Until and unless voters have an opportunity to vote again in a possible future election, Amendment 3 will render some statutes unenforceable,” Bailey wrote to Kehoe, which then references other laws banning abortion except for medical emergencies, after eight weeks, after 14 weeks and after 18 weeks. “If Amendment 3 is certified and goes into effect, it will generally prohibit the attorney general, the governor, locally elected prosecutors, the Department of Health and Senior Services, the Division of Professional Registration, and other officials from enforcing those provisions.”
The letter goes on to say that Bailey’s office will enforce laws against abortions after fetal viability, which is defined in the amendment when a medical professional determines that a fetus could survive outside of the womb without extraordinary intervention. He also told Kehoe that Amendment 3 doesn’t stop his office from enforcing laws requiring parental consent and outlawing coercion for abortions.
Bailey’s response to the lawsuit says that Jackson County Circuit Judge Jerri Zhang shouldn’t issue a preliminary injunction against a slew of other abortion restrictions — primarily because his office contends that Amendment 3 doesn’t impact those laws. Bailey’s brief also said an effort on overturning a requirement for clinics to conform to ambulatory surgical standards must stand, because Planned Parenthood entered into a consent agreement in 2010.
“Because all the state defendants have acknowledged they cannot enforce the statutory prohibition on elective abortion … all remaining challenges can be adjudicated during the ordinary course of litigation, not through the extraordinary remedy of a preliminary injunction,” the lawsuit states.
Bailey could not immediately be reached for comment Wednesday. The office is trying to get the case moved to Cole County, primarily because that’s where the state reached the settlement over ambulatory surgical standards for abortion clinics.
In a statement, Richard Muniz, interim President and CEO of Planned Parenthood Great Rivers, said Bailey’s “nonbinding opinion to Governor-elect Kehoe is nothing but a transparent attempt to evade the court's scrutiny of these blatantly unconstitutional abortion bans ahead of the December 4 preliminary injunction hearing.”
“Indeed, while one might credit the Attorney General for acknowledging the reality that abortion bans are unconstitutional under Amendment 3, the letter fails to discuss the many other restrictions on abortion that shuttered abortion clinics and decimated access in the state long before the Dobbs decision — restrictions that are unconstitutional under Amendment 3, which the Attorney General continues to defend in court,” Muniz said.
Laws could become active again after successful revote
In a law passed in 2019, Missouri banned almost all abortion except for medical emergencies that went into effect in June 2022 after the U.S. Supreme Court struck down Roe v. Wade. There were no exceptions for rape, incest or fatal fetal abnormalities.
Abortion rights proponents ultimately gathered enough signatures and waded through legal battles to get Amendment 3 on the ballot. Voters approved the measure by a little over three percentage points.
Republicans in the General Assembly have talked openly about efforts to counteract Amendment 3 when they come back into session in January.
Any effort to replace or repeal Amendment 3 would require another statewide vote.
In his letter, Bailey noted that opponents of Amendment 3 almost prevailed even though backers raised and spent significantly more money. He added the “tight margin suggests the results may be very different if a future constitutional amendment is put up for a vote.”
Bailey also said if either courts find that Amendment 3 is narrower than expected or if voters approve changes or a complete repeal in the future, that would “automatically restore authority to the Attorney General or other officials to resume broader enforcement.”
“Amendment 3 does not remove these statutes from the books, so there will be no need to reenact them if Amendment 3 is altered in the future,” Bailey wrote.
Muniz said earlier this month that Planned Parenthood wants to resume abortions on Dec. 5.
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