KANSAS CITY, Mo. — If Missouri voters overturn the state’s abortion ban in November, how widely available abortion eventually becomes will depend in large part on whether courts block the state’s current restrictions on medications commonly used to end a pregnancy.

Before Missouri became the first state to ban abortion moments after the U.S. Supreme Court struck down Roe v. Wade in 2022, state laws and regulations had effectively thwarted Missouri’s sole abortion provider, a Planned Parenthood clinic in St. Louis, from using mifepristone and misoprostol, the two primary abortion medications.

Providers were required to perform a pelvic exam prior to an abortion, and physicians had to be physically present with patients when they took the first medication, mifepristone, to induce an abortion.

The exams amounted to “state-sanctioned sexual assault,” Planned Parenthood Advocates in Missouri said at the time. And the physician requirement was more strict than the current rules from the federal Food and Drug Administration, which now allow prescribed abortion medications to be delivered through the mail.

All of those rules remain on the books and, in theory, could be revived if voters on Nov. 5 approve Amendment 3. The proposal would enshrine abortion rights into the state constitution and end Missouri’s ban, which only allows abortions in cases of medical emergencies.

But in practice the regulations would almost certainly face an aggressive challenge from abortion providers. They would go to court to ask judges to block them and make the medications more accessible, citing the amendment, which sets a high bar for restrictions on abortion access.

Whether the courts – and, eventually, the Missouri Supreme Court – would side with abortion providers is a major open question. The answer holds sweeping consequences for abortion in Missouri, a state where access was already extremely limited even before the ban took effect more than two years ago.

Ending the exam and in-person physician requirements would move Missouri much closer to permitting telehealth abortions, a change that would dramatically expand abortion access by allowing doctors to visit with patients remotely and end the need for many women to travel long distances to obtain medications that are commonly used in abortions, especially early in pregnancy. Otherwise, providers may need years to reestablish a statewide network of clinics.

“The reality is that we are not sure whether or not, based upon Missouri law, you know, a doctor would be able to immediately prescribe medication abortion,” said Pamela Merritt, a longtime abortion rights activist originally from Missouri.

“One of the No. 1 reasons why there might be a hesitancy is that Missouri still has a regulation on the books that requires, it mandates, a medically unnecessary vaginal exam the day of receiving medication abortion,” said Merritt, who now heads Medical Students for Choice, an international group that trains students about reproductive health care.

But abortion opponents themselves say Amendment 3 would gut regulations and have suggested Missouri would be a nearly-anything-goes destination if the measure passes.

“All of that would be thrown out the window,” Samuel Lee, a longtime anti-abortion activist in Missouri, said of restrictions on medication abortions.

“I mean, if not immediately, then soon thereafter. I mean, it’s such a broad right,” Lee said.

Missouri Supreme Court’s call

Multiple independent polls show a majority of Missouri voters support Amendment 3, suggesting supporters are on a path to victory. An August poll by Saint Louis University and YouGov found 52% support for the measure and 34% opposition, with 14% undecided.

If passed, the vote would mark a watershed moment in Missouri history. The state has restricted abortion for much of its history – abortion was illegal in the state when the U.S. Supreme Court released Roe v. Wade in 1973 and it was again illegal as soon as the high court overturned the decision in 2022.

Amendment 3 guarantees a fundamental right to reproductive freedom, which includes the right of individuals to make decisions regarding abortions, as well as other prenatal care, birth control and other forms of reproductive health care. The amendment makes imposing restrictions on abortions before the point of fetal viability, typically 22 to 24 weeks into pregnancy, extremely difficult.

Restrictions must be justified by a “compelling governmental interest achieved by the least restrictive means.” The amendment defines compelling interests to only include the limited purpose of improving or maintaining the patient’s health.

Rules and regulations must be “consistent with widely accepted clinical standards of practice and evidence-based medicine” and cannot infringe on the individual’s autonomous decision-making.

The Missouri Supreme Court would likely be asked to decide whether the state’s restrictions on abortion medications align with those standards.

“You have to kind of take into account who’s on the Missouri Supreme Court,” said Mary Ziegler, a law professor at the University of California-Davis who has studied the history of abortion in the United States.

The seven-member Missouri Supreme Court has five judges appointed by Republican governors and two appointed by Democratic governors. Last month, the court only allowed Amendment 3 to remain on the November ballot in a 4-3 decision. While the decision wasn’t rooted in abortion policy, the vote underscored how close the judges came to derailing the proposal.

“In all likelihood what this will look like,” Ziegler said, “is you will have anti-abortion physicians or lawmakers who are opposed to abortion calling on experts to say the law as it stands … is supported by evidence-based medicine and here’s like 10 doctors from the American Association of Pro-Life Physicians and Gynecologists here to tell you all about it.”

Mifepristone is widely considered safe within the medical community. The American College of Obstetricians and Gynecologists says in a statement that “the overwhelming weight of scientific evidence has conclusively demonstrated that mifepristone is safe and effective.”

It is also the most common abortion method. Abortion medications were used in about 63% of all abortions in 2023, according to the Guttmacher Institute, a research organization that supports abortion rights. The vast majority of medication abortions occur in the first trimester.

Mifepristone and misoprostol are also commonly used in miscarriage care. While Missouri law allows doctors to prescribe the medications to treat miscarriages, the state’s abortion ban has led to fear and uncertainty over what exactly is allowed.

The major campaign supporting Amendment 3, Missourians for Constitutional Freedom, did not directly respond to questions about medication abortion but pointed to the “devastating consequences” of the abortion ban that “ripple through every area of medicine.”

“Without exceptions, even in cases of rape, incest, or when the woman’s health and future fertility are at risk, the abortion ban ties the hands of doctors for fear of losing their license or criminal prosecution,” campaign manager Rachel Sweet said in a statement.

Sweet added that Amendment 3 “protects the private medical decisions of Missourians, and ensures individuals have the right to reproductive freedom, including access to abortion, birth control and miscarriage care.”

FDA changes medication rules

The FDA in 2023 rescinded a previous requirement that mifepristone be dispensed in person, a decision that opened the door to sending the medication through the mail from certified pharmacies. In June, the U.S. Supreme Court dismissed a challenge to the FDA’s decades-old approval of the drug, finding a group of doctors that had sued lacked standing to challenge the decision.

Missouri Attorney General Andrew Bailey and Kansas Attorney General Kris Kobach, both Republicans, are continuing to pursue a challenge, however. In a Sept. 30 court filing, attorneys for Bailey and Kobach wrote that they don’t plan to fight the FDA’s original approval of mifepristone in 2000, but only the agency’s more recent actions to make the drug more widely available.

By their own admission, Missouri abortion opponents would have a difficult time trying to uphold restrictions if the amendment passes. Critics of the amendment have argued that the amendment places nearly all meaningful regulations at risk.

Some also take issue with what they suggest is a double-standard in the proposal.

“Note that the language of the initiative does not require the woman to prove safety and consistency with clinical standards for her choice to count; only the State must do that in connection with its restrictions,” attorney James S. Cole writes in a legal analysis of Amendment 3 circulated by Missouri Right to Life.

A spokeswoman for Bailey, Madeline Sieren, didn’t respond to a question about whether he believes he could successfully defend the in-person physician requirement.

Ziegler, the law professor, said the medications are threatening to anti-abortion groups in part because they help normalize abortion.

“It’s also that abortion medication sort of looks like the future of abortion services, at least early in pregnancy,” Ziegler said. “It’s been sort of the focal point of anti-abortion organizing in the short term.”

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