KANSAS CITY, Mo. — When Missouri voters decide in less than three weeks whether to enshrine abortion rights in the state constitution, the ballot measure before them will include a legal definition of fetal viability more strict than current state law.

How Missouri defines fetal viability – generally the point at which a fetus can survive outside the womb – will be key to determining at what stage of pregnancy Missouri lawmakers can ban or restrict abortion. Future legislation, and likely court decisions, hinge on this definition.

Amendment 3 would overturn the state’s abortion ban that has been in place since moments after the U.S. Supreme Court overturned Roe v. Wade in 2022. It recognizes a fundamental right to reproductive freedom that, with limited exceptions, cannot be restricted.

At the same time, the measure grants much more latitude to the Republican-controlled General Assembly after fetal viability. Lawmakers could ban abortion after viability as long as they include exceptions for the life, physical or mental health of the pregnant person.

Amendment 3 defines fetal viability as the point in pregnancy “when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”

Amendment 3’s fetal viability definition closely matches standards included in abortion rights measures on the ballot in at least four other states in November. Proposals in Arizona, Montana, Nebraska and Nevada all contain language similar to Missouri.

But the major campaigns supporting and opposing Amendment 3 have devoted little public messaging to the proposed fetal viability standard as Election Day approaches.

Opponents have made sweeping claims, rebutted in court decisions, that Amendment 3 will allow virtually unlimited abortion access with no safety standards. Supporters have emphasized that the measure will place decision making in the hands of patients and health care professionals, but haven’t broadcast the specifics of the viability definition.

Still, the viability definition is crucial to how Amendment 3 will operate if approved. Multiple polls suggest the proposal is on track to pass; a mid-September Emerson College Polling/The Hill survey found 58% support among likely voters.

Some abortion opponents fear Amendment 3’s definition sets the stage for elective abortions later in pregnancy than the 22-24 weeks of gestation that today is widely seen as the earliest point of viability, though abortions at that point are rare. Nationally, only 1% of abortions occur after 21 weeks, according to the health policy research group KFF.

“We maintain that Amendment 3 would definitely move viability past 22-24 weeks of pregnancy – possibly even to 30-34 weeks of pregnancy or later,” Sam Lee, a longtime Missouri anti-abortion activist and president of Missouri Stands With Women, a group opposing the measure, said in an email.

The ballot measure’s definition is narrower than Missouri’s current abortion law, which includes a provision banning nearly all abortions triggered by the end of Roe in 2022. The law defines viability as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.”

By contrast, Amendment 3 includes a “more demanding standard for whether a child can survive outside the womb,” Mary Catherine Martin, a Missouri-based attorney for the socially conservative Thomas More Society, wrote in a legal brief urging the Missouri Supreme Court to keep the measure off the November ballot. Martin wrote that the proposal moves fetal viability significantly later in pregnancy than the current law.

The state Supreme Court in a 4-3 decision kept Amendment 3 on the ballot. While the majority opinion didn’t reference viability, Judge Kelly Broniec wrote in a dissenting opinion that the amendment’s definition of fetal viability directly conflicts with current state law.

Missourians for Constitutional Freedom, the main campaign supporting the measure, emphasized that the amendment puts medical decisions in the hands of patients and doctors.

“Amendment 3 prioritizes the health and well-being of patients by giving them and their healthcare providers the ability to make informed medical decisions related to abortion and reproductive health care, free from political interference,” Rachel Sweet, the campaign manager, said in a statement.

‘Extraordinary medical measures’

Amendment 3 doesn’t define “extraordinary medical measures” – leaving unclear on the proposal’s face what counts as extraordinary vs. ordinary care.

Jamie Corley, a St. Louis-area Republican who spearheaded an unsuccessful effort to advance a more modest abortion rights measure, said it would be helpful if Amendment 3 proponents would offer their interpretation of where the fetal viability definition would likely land in a pregnancy.

The proposal from Corley, who ran for state secretary of state earlier this year, would have allowed for abortion at up to 12 weeks of pregnancy, along with several exceptions.

“I think most people – and we’ve even seen this in the news, we’ve even seen editorial boards and reporters – just by default say, ‘oh, it’s around 22 weeks.’ And so that’s what people, I think, are going to vote on when they hear viability,” Corley said.

“And so is that true or not? And that’s really up to Missourians for Constitutional Freedom.”

Michael Wolff, a former Missouri Supreme Court chief justice, said the proposal is specific enough on fetal viability. Wolff has given advice to Amendment 3 supporters and previously authored an amicus brief on behalf of the League of Women Voters of Missouri in a lawsuit over the fair ballot language used to describe the proposal.

Wolff acknowledged choices surrounding viability are tough decisions but said the medical world understands viability. The overall thrust of the ballot measure, he said, is that a point exists in pregnancy before which “the government does not belong in the equation.”

“It doesn’t satisfy that ‘tell me exactly what you mean’ but it does provide the guidance that basically people want to keep the government out of the delivery room or the bedroom or wherever until it becomes all of our business,” Wolff said.

Missouri’s Amendment 3 and similar proposals reflect the evolving role “fetal viability” plays in abortion law.

When the U.S. Supreme Court guaranteed a federal right to abortion in the 1973 Roe v. Wade decision, the justices relied on a trimester framework to guide regulations on the procedure. The government couldn’t interfere with the right to abortion during the first trimester of pregnancy, but could take additional steps during the second trimester and ban abortion during the third trimester – week 28 – at that time considered the point of viability.

The U.S. Supreme Court’s 1992 Casey decision eroded abortion rights by overturning the trimester framework and allowing states to analyze viability when enacting restrictions – while at the same time loosening the legal standard of review for restrictions. That led states, including Missouri, to impose restrictions earlier in pregnancy.

Since the high court’s 2022 decision overturning Roe, 11 states have banned abortion at the point of fetal viability, according to KFF. Four states ban abortion at 24 weeks, while one bans it at the third trimester. Nine states and the District of Columbia have no viability or gestational bans.

Amendment 3’s fetal viability definition isn’t “particularly unusual,” said Mary Ziegler, a law professor at the University of California-Davis who has studied the history of abortion in the United States.

“Having a weeks-based definition is actually, in some ways, worse from the standpoint of people who oppose abortion because of course, as anyone who’s been around a pregnancy knows, fetal development varies by pregnancy,” Ziegler said.

Viability is a ‘spectrum’

Medical providers broadly caution that viability is a fluid concept.

The American College of Obstetricians and Gynecologists says there is no single, clinical definition of viability, and the organization has discouraged lawmakers from including viability in legislation or regulations.

Viability depends on many complex factors, ACOG says on its website, with gestational age only one among many. Sex, genetics, weight, circumstances surrounding delivery and the availability of intensive neonatal care all influence whether a fetus is likely to survive.

Delivery before 23 weeks is almost universally fatal, while some studies have found survival rates of more than 50% for infants born at 24 weeks, according to data summarized by ACOG and the Society for Maternal-Fetal Medicine.

Betsy Wickstrom, an OB-GYN from Kansas City who supports Amendment 3, called viability a spectrum.

“So what we’re trying to do by saying viability in a law is hand this decision back where it belongs — to the family that is birthing this child, to the physicians that are advising them about what they can expect if they’re born,” Wickstrom said. “That’s where this decision belongs, and that’s why it’s worded that way.”

Asked how she thinks about extraordinary medical measures, Wickstrom said that from an obstetrics perspective, the term refers to “going above and beyond what you would do for any other person in this exact scenario, and without expecting it to be of any benefit.”

Lee, the anti-abortion activist, suggested a stay in a neonatal intensive care unit, or NICU, could count as “extraordinary medical measures.” He pointed to the use of the phrase in the context of end-of-life care, which can sometimes refer to resuscitation or other treatments.

Whether NICU treatment would qualify as extraordinary, Wickstrom said, depends on the circumstances. NICUs care for both full-term babies and babies that may have lost a lot of blood, for instance.

“They do so many things for so many babies,” Wickstrom said. “So it’s not just that it’s NICU care. It is care that is potentially painful without any benefit. That’s what’s extraordinary.”

Terry Rosell, a staff member at the Center for Practical Bioethics in Overland Park, said that as a non-clinician observer, the concept of “extraordinary medical measures” is a moving goal post, dependent on context involving personal values, technological developments and socioeconomics. What was once extraordinary a while ago may be ordinary today, he noted.

Rosell said he reads the phrase within the context of Amendment 3 to mean viability is when a baby is expected to survive without requiring sustained medical interventions to support “basic cardiopulmonary functions, nutrition-hydration, and other life supports.”

“Temporary use of any of those measures, perhaps over many weeks or even months, seems to me relatively ordinary in our NICU environments,” Rosell wrote in an email.

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