In abortion rights vote, Missouri could do something no state has before

Missouri would become the first state to overturn a near-total abortion ban if voters support a state constitutional amendment this fall.

Across the country over the past two years, voters in both liberal and conservative states have repeatedly affirmed their support for legal abortion. But no state has voted on whether to overturn a near-total ban.

Advocates in Missouri — where Republicans have a firm grasp on state and federal politics — hope to convince voters who have seen decades of restrictions that abortion rights are worth constitutional protection. Should they succeed, it will upend decades of laws limiting the procedure, potentially opening up a new era of abortion access.

“A lot of our state is aware of the harm in a way that other states with lesser restrictions may not have been as intimately aware,” said Mallory Schwarz, the executive director at Abortion Action Missouri. “Because we are seeing the harm every day and have for years.”

Missouri’s measure goes the furthest to increase access, seeking protections through fetal viability, a standard established by the Supreme Court in Roe v. Wade. Advocates in two other states seeking to overturn bans this year took a more limited approach.

Missouri abortion rights advocates say there is strength in their approach. Rather than giving a deadline for when someone can get an abortion, the fetal viability language — combined with exemptions for the life, health and mental health of the mother — allows the decision to be determined with the help of medical professionals, rather than legislation.

But, as the group embarks on a multimillion-dollar campaign, it will have to convince voters that the amendment is the right fit for a state that has increasingly, and overwhelmingly, voted for anti-abortion conservative politicians.

“We’re just not talking about returning to Roe, OK?” said Sam Lee, a longtime anti-abortion activist in Missouri. “I would say we and our opponents agree on this: It’s not returning to Roe, it’s beyond Roe.”

Abortion supporters gathered in the front of the Missouri Capitol.
Abortion supporters gathered in the front of the Missouri Capitol.

Finding the ballot language

To figure out the abortion rights language in its ballot measure, South Dakotan advocates filled out a spreadsheet comparing their options. Abortion rights groups in Arkansas consulted polling.

But in Missouri, the negotiation was public. Abortion rights advocates originally filed 11 initiative petitions with Secretary of State Jay Ashcroft’s office in March 2023. They ranged from allowing all abortions to limiting abortions to within 24 weeks.

About 10 months later — after fierce debate within the abortion rights movement — advocates coalesced under one name, Missourians for Constitutional Freedom, and one ballot measure: Guaranteeing access to abortion until fetal viability.

While the Supreme Court used fetal viability — the point at which a child can live outside of the womb — as its original standard in Roe v. Wade, the American College of Obstetricians and Gynecologists says it doesn’t point to a concrete date.

In 1973, when Roe v. Wade was first decided, fetal viability was considered between 24 to 28 weeks after conception. But as science has improved, the time in which a fetus is considered viable has gotten earlier. Anti-abortion activists frequently point to a study that found some babies born at 22 weeks were able to survive with extensive treatment.

Missouri would join a group of 11 states that allow for restrictions after fetal viability, putting it on the same list as states like California, Illinois, Maine, Wyoming and Montana.

“I think the strength of our policy is that it leaves any definitions or determinations up to medical professionals,” Schwarz said. “I think anyone that’s been pregnant knows — I’ve had two babies, two pregnancies, and know that every pregnancy is different. And the most important thing is allowing providers to treat the patient in front of them and make decisions with that patient about what’s best for themselves and their families.”

Already, anti-abortion groups are questioning the limits to the group’s chosen language. Lee criticized a part of the amendment that would prevent the Legislature from imposing restrictions on abortion if it is deemed necessary “to protect the life or physical or mental health of the pregnant person.”

Lee said the mental health provision — which was also included in ballot measures in Michigan and Arizona — could create a loophole for people seeking abortions despite any regulations the Missouri Legislature may impose.

“One of our arguments will be: Do you want to pass something that you have to pass it to figure out what’s in it?” Lee said. “We’ll be trying to explain to voters: Don’t vote for something unless you really, really understand what it’s going to do.”

Lee, a longtime lobbyist in Jefferson City, spent most of his career pushing for restrictions on abortion. He helped urge the Missouri Legislature to put in restrictions like a 72-hour waiting period and laws requiring parental consent for minors seeking an abortion.

Those restrictions helped make abortion access difficult in Missouri, even before the Supreme Court overturned Roe v. Wade. When the state’s trigger law went into effect, there was only one abortion clinic operating in the state, based in St. Louis.

The efforts by Missouri officials to whittle away at abortion access, and potentially block the upcoming proposal from the ballot, have abortion rights supporters bracing for new tactics in the future. That could include future court battles over old restrictions or attempts to pass new ones even if voters approve the amendment in November.

Sen. Lauren Arthur, a Kansas City Democrat, said she expects Republican lawmakers to continue to try to pass restrictions on abortion even if the amendment passes, including requiring parental consent or mandatory waiting periods.

“They’ll do it knowing that it is in complete contradiction to the state constitution, the thing which they took an oath to uphold,” Arthur said. “They’ll do all of that and then, you know, our constitutional lawyers will file the lawsuits, and, you know, become all the richer because Republicans refuse to follow the constitution. And it’s going to play out over years.”

Planned Parenthood in St. Louis was the last clinic licensed to perform abortions in Missouri before the state implemented a total ban on abortions moments after the Supreme court overturned Roe vs. Wade in 2022.
Planned Parenthood in St. Louis was the last clinic licensed to perform abortions in Missouri before the state implemented a total ban on abortions moments after the Supreme court overturned Roe vs. Wade in 2022.

Arkansas, like Missouri, has a reputation as an anti-abortion state. Gennie Diaz, the spokesperson for Arkansans for Limited Government, said the Legislature takes pride in being called the “most pro-life state in the country.”

The state’s constitution says that it will “protect the unborn.”

When her group was drafting language for its ballot measure, they relied on a poll to determine the level of access that would appeal to a large swath of voters.

“Having an initiative that guarantees unlimited access up to viability is just not passable in a state like ours,” Diaz said. “It’s just not. That is the truth.”

When a draft of the Supreme Court’s Dobbs decision was leaked, advocates in South Dakota started compiling ballot language from other states in a spreadsheet. Adam Weiland, the co-founder of Dakotans for Health, said his group had to take into account that South Dakota was more conservative than states like California — though South Dakotans voted twice, in 2006 and 2008, to prevent the procedure from being banned in the state.

“It’s a conservative state, and we need to be cognizant of that when we take these things on,” Weiland said. “Right now we’re in the basement on access to reproductive justice here in South Dakota.”

The abortion election

The Supreme Court’s Dobbs decision upended abortion politics across the country. In the elections since the decision, Democrats have frequently overperformed expectations while making abortion rights a key campaign talking point.

It has become a key election issue for a struggling President Joe Biden, who has traveled the country campaigning on the issue as he’s locked in a tight campaign against former President Donald Trump.

In April, Biden made a campaign trip to Tampa to rail against the state’s newly imposed six-week ban. He denounced an Arizona Supreme Court ruling that upheld an 1864 law banning the procedure. In May, his campaign spent more than $1 million in television advertisements in Pennsylvania highlighting abortion rights.

All of those states could have ballot measures on abortion this fall.

Voters reacts to the passage of Ohio Issue 1, a ballot measure to amend the state constitution and establish a right to abortion at an election night party hosted by the Hamilton County Democratic Party, in November 2023, at Knox Joseph Distillery in the Over-the-Rhine neighborhood of Cincinnati.
Voters reacts to the passage of Ohio Issue 1, a ballot measure to amend the state constitution and establish a right to abortion at an election night party hosted by the Hamilton County Democratic Party, in November 2023, at Knox Joseph Distillery in the Over-the-Rhine neighborhood of Cincinnati.

As donors see abortion rights as a way to help the Democratic ticket, advocates in noncompetitive presidential states are concerned that there will be more focus on states that could tip the election for Biden.

“I think that a lot of the focus, probably too much of the focus, is in battleground states right now on these issues,” Weiland said. “And I get why they’re thinking that. But I also contend that the battleground states, presidential battleground, Senate battleground states, will have an ungodly amount of money. They have more money than they need.”

Instead, he said, the abortion rights movement should be focused on states like South Dakota, Missouri and Arkansas — the conservative states where advocates have a chance to restore access.

And, to do so, advocates will have to convince national donors that conservative states are worth the investment.

In its last campaign finance disclosure, Missourians for Constitutional Freedom reported raising $6.7 million throughout the campaign. That’s far less than the more than $20 million Sen. Josh Hawley, who opposes abortion rights, has raised for his reelection campaign.

“I think the biggest challenge is going to be that, with the national landscape, with so many states working so hard in this moment, that we need to make sure that Missouri has the funding to get our message out there, and to make sure that we can end this total abortion ban,” Schwarz, with Abortion Action Missouri, said.

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