A fight over wording for a proposal to reverse the abortion rights amendment Missouri voters added to the state Constitution in November will look very much like a similar fight in 2023.
The ACLU of Missouri filed a lawsuit Wednesday in Cole County with two objectives: Keep the proposal designated as Amendment 3 off of the November 2026 ballot or, failing that, completely reword the ballot language crafted by lawmakers. The job of defending the proposal and the way it is written will fall to Secretary of State Denny Hoskins, who is the lead defendant.
In 2023, the ACLU of Missouri also challenged ballot language, written by then-Secretary of State Jay Ashcroft, but with the intent of getting a citizen initiative on the ballot.
“It certainly feels a lot like deja vu to go back into Cole County and argue again over a misleading and inaccurate ballot summary statement from a Missouri politician,” ACLU attorney Tori Schafer said in an interview with The Independent.
One of the main proponents of the legislative measure, Sam Lee of Campaign Life Missouri, said the lawsuit was expected. He said he doesn’t think the measure will be thrown off the ballot and said the ballot language is defensible and should stand.
“You get a dozen lawyers in a room, and they’ll write it 12 different ways,” Lee said. “And as long as it’s fair and impartial, there are a variety of ways of doing it.”
When the U.S. Supreme Court overturned Roe v. Wade in 2022, it triggered a Missouri law banning abortions in almost all instances. That led to an initiative campaign, which resulted in a 52% majority approving a constitutional amendment that made abortion legal up until the point of fetal viability.
But except for a short period, abortions have remained unavailable because the question of which of Missouri’s abortion regulations remain in force is tied up in court. Prior to the total ban, for example, Missouri required a 72-hour waiting period between an initial appointment and an abortion, that a woman seeking an abortion be given a lengthy document about fetal development and that all abortions take place in specially licensed ambulatory surgical centers.
The lawsuit over those issues is being heard in Jackson County Circuit Court, where Judge Jerri Zhang could issue a decision at any time on a request for an injunction against the laws.
The proposal passed by lawmakers would repeal the voter-approved initiative in its entirety and replace it with language that would allow the ban to be reinstated. It would carve out limited exceptions, allowing abortions in cases of rape, incest, fetal anomaly or medical emergencies during the first 12 weeks of pregnancy.
The proposal would also ban gender transition surgeries or medications for people under 18, and require all lawsuits that raise questions about state laws on reproductive health care be filed in Cole County.
The ballot language written by lawmakers, and being challenged in the lawsuit, would state:
“Shall the Missouri Constitution be amended to:
- Guarantee access to care for medical emergencies, ectopic pregnancies, and miscarriages;
- Ensure women’s safety during abortions;
- Ensure parental consent for minors;
- Allow abortions for medical emergencies, fetal anomalies, rape, and incest;
- Require physicians to provide medically accurate information; and
- Protect children from gender transition?”
In the lawsuit, the ACLU is arguing that the ballot language is unfair and misleading.
The “summary statement uses language which is intentionally argumentative and likely to create prejudice for the measure,” the petition states.
The most glaring omission is that it does not mention what it is replacing, the lawsuit states.
“Among other things, the summary statement fails to advise voters that it will repeal a measure they just adopted in the last election cycle,” attorneys wrote.
The language should at least inform voters that there will be no protected right to obtain an abortion, Schafer said.
“The courts back in 2023 made sure we had a fair and accurate ballot summary statement and fair ballot language,” she said. “We know that they’ll do the same this year.”
The gender-affirming treatments language and the provision directing venue of reproductive health care cases to Cole County are impermissible, the lawsuit states. They violate the Constitution’s requirement that constitutional amendments address only one subject.
“We know that the reason that Missouri politicians put that piece about Cole County in there is because they don’t like the fact that we’ve been successful on the (legal challenges to restrictive laws) in Jackson County,” Schafer said. “It was a very politically motivated reason that they put that in.”
Lee said he thinks all the subjects relate to reproductive health care and will survive that part of the challenge.
“It’s a weak argument, because even supporters of what passed in November last year link reproductive health care with transgender care,” he said.
The return to court over ballot language on abortion rights is the latest round of a seemingly endless contest.
Abortion rights supporters will never give up, Schafer said.
“I feel like what we’re asking for is a very simple thing, which is just get politicians out of health care and let people make their own health care decisions,” she said. “And so that is our stance on that.”
If the legislative measure makes it to the ballot and passes, Lee said, he expects a new initiative to reverse it. Lee has been an anti-abortion activist for decades, including many years as an influential lobbyist.
Asked when he expects the debate to end, Lee said:
“Not in my lifetime. I’m not saying that because of me personally. I’m just saying I don’t expect it to be settled anytime soon.”
