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By Alyse Pfeil
St. Louis Post-Dispatch
(St. Louis Post-Dispatch) — With two weeks left for advocates to gather enough signatures to put abortion-rights on the Missouri ballot this year, opponents are urging people not to sign the petition, saying the proposed constitutional amendment would allow for a radical and unregulated expansion of the procedure. online news
Among the opponents’ claims: the constitutional amendment, if approved by voters, would eliminate health and safety standards for abortion clinics, allow people to perform the procedure without a health care license, bar malpractice lawsuits against abortion providers, allow minors to get abortions without parental consent, and permit abortions after fetal viability.
Those claims — disputed by supporters of the amendment and legal experts — are being widely circulated by some anti-abortion groups.
Top Republican lawmakers, including the three leading GOP candidates for governor, have appeared in a series of “decline to sign” videos, sponsored by Missouri Stands with Women, a political action committee launched this year to fight any abortion-rights initiative petitions.
Missouri Right to Life, an affiliate of National Right to Life, has produced “decline to sign” literature, including flyers listing 10 reasons to oppose the proposed amendment.
Coalition Life, another anti-abortion group, is running radio ads warning listeners to “think twice” before signing.
And Missouri’s Roman Catholic bishops have issued their own statement urging against signing the petition, saying the amendment would remove long-standing health and safety standards for women.
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Missourians for Constitutional Freedom, the well-financed coalition working to get the proposed constitutional amendment on the ballot, says anti-abortion groups are spreading misinformation.
“It’s no surprise that the other side is spreading untruth, and that’s because their position is so deeply unpopular,” said Tori Schafer, spokeswoman for Missourians for Constitutional Freedom.
Since January, the coalition has held dozens of events across the state to gather the thousands of signatures required for the abortion-rights ballot question.
They have until 5 p.m. Sunday, May 5, to submit 171,592 valid signatures to the Missouri Secretary of State Jay Ashcroft’s office.
Missouri is among several other states, including Arizona, Florida, Michigan and Ohio, that are now using or have used ballot initiatives to place abortion protection in the state constitution. The cascade of ballot initiatives was spurred by the U.S. Supreme Court’s 2022 Dobbs decision, which overturned the federal constitutional right to abortion previously guaranteed by Roe v. Wade, and left abortion regulation up to each individual state.
Here’s a closer look at key claims by Missouri’s anti-abortion groups about the proposed constitutional amendment and how lawyers and legal experts assess them.
—Health regulation and licensure
Missouri Stands with Women spokeswoman Stephanie Bell said the basis for concerns over regulation of abortion clinics comes from amendment language that says “any denial, interference, delay, or restriction of the right to reproductive freedom shall be presumed invalid.” Under this language, Bell said, existing laws that protect women’s health would be presumed invalid.
Missouri Right to Life, which did not respond to multiple requests for comment, contends health and safety standards for abortion clinics and licensure requirements for abortion providers would be eliminated if the amendment is passed by voters.
But Schafer, with Missourians for Constitutional Freedom, said that’s wrong.
“Our amendment, when it’s passed, requires that any health regulations put in place are truly legitimate, and they will be allowed if they truly advance the health and safety of the patient,” she said.
Schafer said the amendment responds to “TRAP laws” — targeted regulation of abortion providers — that were in place before Missouri’s near-total abortion ban took effect with the Dobbs decision.
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“(TRAP laws) weren’t actually medically necessary. They were medically inappropriate, and they were intended to make abortion unavailable,” Schafer said.
For example, under one Missouri law, only physicians can perform abortions, and other health care providers such as nurse practitioners who perform the procedure face felony charges. And while not all doctors have clinical privileges allowing them to treat patients at a hospital, abortion providers must have clinical privileges at a hospital located within 30 miles and that offers obstetric or gynecological care. Not all hospitals offer this kind of care.
Some say laws like these protect women’s health. Abortion-rights supporters say, and courts in some instances have found, that they aren’t medically necessary and primarily serve to restrict abortion access.
The amendment sets a clear and high bar for the kinds of abortion regulations that can pass muster — or withstand a legal challenge. Any regulation must have the purpose and effect of improving or maintaining the health of the patient in way that’s “consistent with widely accepted clinical standards of practice and evidence-based medicine.”
A lawyer who is not involved with either side of the ballot initiative said the constitutional amendment would allow for abortion and reproductive health care laws that legitimately seek to protect the health of people receiving care and ensure quality care.
Gina Bertolini, a North Carolina-based attorney with K&L Gates who advises health care providers on issues related to regulatory compliance, said the government has a “compelling interest” in protecting the safety of individuals who receive health care service.
“So there will always be the ability of the government to take steps to ensure that the care is delivered in a safe manner,” she said. “Having licensed providers in licensed facilities that meet certain quality standards, those are all the kinds of things that would meet the compelling governmental interest test.”
“This is much more about protecting the individual’s personal decision as it relates to reproductive health care, and ensuring that there are paths for people to get the health care they need. But it doesn’t remove the ability of the government of the state of Missouri to appropriately regulate those services to ensure the safety and quality of care and to protect people receiving care.”
Nicole Huberfeld, a Boston University law professor specializing in health law and reproductive rights, said the constitutional amendment addresses “abortion exceptionalism.”
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“The idea is that states have treated abortion differently from other kinds of health care. And so what this constitutional amendment would do is make it much harder for the state to engage in special restrictions for abortion‚” Huberfeld said. “But that wouldn’t mean that the doctor couldn’t still be regulated like all other doctors or a nurse couldn’t still be regulated like other nurses or that a physician’s office or a hospital or a clinic wouldn’t still be regulated in the same way as any other health care providers.”
—Malpractice claims
Missouri Right to Life also claims that the proposed amendment would deny women the right to sue abortion providers for malpractice.
Bell, with Missouri Stands with Women, said concerns related to malpractice stem from language in the proposed amendment that would prohibit the punishment or prosecution of those who assist others with reproductive health care.
That language says: “No person shall be penalized, prosecuted, or otherwise subjected to adverse action based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion. Nor shall any person assisting a person in exercising their right to reproductive freedom with that person’s consent be penalized, prosecuted, or otherwise subjected to adverse action for doing so.”
“It would shield those performing abortions and other providers from any liability for any sort of prenatal care,” Bell said.
Schafer said the idea that patients can’t sue for malpractice under the amendment is a “fallacy.”
“Our amendment allows for people who are seeking abortions or get reproductive freedom care to not be criminalized or penalized, and people who are supporting those individuals in seeking that care to not be penalized,” Schafer said.
“I think it’s a little ambiguous,” Bertolini, the health care attorney, said of the language in this section. “If people are concerned that this would mean there would not be recourse for, say, professional malpractice by a health care provider, it may require a court’s interpretation. But there is a compelling government interest in allowing those kinds of laws to protect individuals from bad actors and from negligent health care providers.”
David Cohen, a constitutional law professor at Drexel University and abortion and reproductive rights scholar, rejected the idea that the amendment would bar malpractice claims.
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“I just can’t imagine that that would be used to upend the entire basis of tort law, which is that there can be malpractice for when you act negligently,” Cohen said. “There is no way this would be interpreted by any court to upend malpractice and tort law.”
He said the anti-abortion movement’s claims about malpractice and elimination of health regulation are arguments seen in other states, calling it “run-of-the-mill fearmongering.”
—Fetal viability
Under the amendment, health care providers would be able to perform abortions after fetal viability — the point at which a fetus can survive outside the womb — if a health care professional determines the procedure is needed to protect the life or health of the mother.
While the Legislature could enact regulations for post-viability abortions, it could not bar the procedure when “in the good faith judgment of a treating health care professional (it) is needed to protect the life or physical or mental health of the pregnant person.”
“These abortions are incredibly rare,” said Cohen, the Drexel constitutional law professor. “Not many providers are skilled and trained to do them. And when they do do them, it’s because someone’s life or health is really seriously at risk. And so, this constitutional language would allow a provider to make that judgment, which none of them take lightly.”
Dr. Sarah Horvath, an OB-GYN and complex family planning physician in Pennsylvania, said the “overwhelming majority” of people who have an abortion do so very early in pregnancy. And for those who access abortion care later in pregnancy, it’s in the context of unique life and medical circumstances.
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“People do not access abortion care lightly,” said Horvath, a member of the American College of Obstetricians and Gynecologists. “They have thought about their decision long before they get to an abortion care clinic, long before they’re actually having the procedure or taking the pills. This is a well-considered decision for folks. This isn’t something that’s happening on a whim.”
—Parental consent
Parental involvement laws define if and how minors must get consent from parents before an abortion.
According to one Missouri Right to Life flyer, the constitutional amendment “would allow abortions to be performed on pregnant minors without notice to or consent from the minor’s parents.”
In the decades following Roe, “the majority of states enacted parental involvement laws, and these were permitted even though there was a federal constitutional right to abortion,” said Rachel Wechsler, a law professor at the University of Missouri.
This is largely because the Supreme Court has recognized that parents have a fundamental constitutional right to the care, custody and control of their minor children, Wechsler said. But an exception must also be available for cases such as incest or abuse. Known as a judicial bypass procedure, the process for these exceptions allows a court to decide if a minor should be permitted to have an abortion without parental consent or notification.
“If Missouri passes this constitutional amendment, it can also enforce the existing parental involvement law on the books, which requires the consent of one parent, notification of the other parent, and provides for a judicial bypass procedure,” Wechsler said.
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