Missouri Supreme Court voted 4-3 to keep abortion amendment on ballot, opinions show

KANSAS CITY, Mo. — The Missouri Supreme Court only narrowly rejected arguments raised by anti-abortion activists who tried to keep a measure overturning the state’s abortion ban off the November ballot.

The state Supreme Court last week issued an order keeping the proposed state constitutional amendment – called Amendment 3 – on the Nov. 5 ballot. The judges’ decision came hours before a deadline to finalize the ballot and they didn’t explain their reasoning at the time.

The court on Friday released a full opinion that goes deep into the its rationale, revealing a 4-3 divide over the last-ditch attempt to block a vote on the proposal.

In the majority opinion, Judge Paul Wilson wrote bluntly that the case was “not about abortion” but instead what information must be included on initiative petitions.

The legal dispute centered on whether the amendment sufficiently described what laws it would repeal, fulfilling a requirement for ballot measures. Abortion opponents argued it did not, while abortion rights supporters said opponents were misreading the requirement.

Wilson, an appointee of former Democratic Gov. Jay Nixon, found that requirement in state law effectively irrelevant because restrictions on the power of initiative petitions can only be found in the constitution.

“So, the question is only what the constitution requires,” Wilson wrote, noting that the state Supreme Court has never held that the state constitution requires a petition to identify all state laws that may later be declared invalid.

Chief Justice Mary Russell, Judge Robin Ransom and Judge Brent Powell concurred with the decision.

The amendment would prohibit the General Assembly from banning abortion until fetal viability, defined in the measure as the point in pregnancy when there’s a significant chance the fetus can survive outside the womb without extraordinary medical measures.

The amendment allows but does not require, lawmakers to restrict abortion after viability; the GOP-controlled legislature would almost certainly pass a ban on abortions late in pregnancy.

Any post-viability ban would be required to allow at least three exceptions – for the life, physical and mental health of the woman.

“Because Amendment 3 does not purport to repeal any existing constitutional provision and is not so utterly and completely inconsistent with any existing constitutional article or section as to constitute a direct conflict or irreconcilable repugnance, Opponents’ first challenge fails,” Wilson wrote.

The Missouri Supreme Court’s order on Sept. 10 came after Cole County Circuit Court Judge Christopher Limbaugh ruled against the measure after anti-abortion activists filed a lawsuit seeking to toss it from the ballot.

Limbaugh, an appointee of Republican Gov. Mike Parson and a cousin to the late conservative talk radio host Rush Limbaugh, found the amendment didn’t comply with a requirement that ballot measures outline what state laws they would repeal.

Lawyers for Missourians for Constitutional Freedom, the main campaign for the amendment, swiftly appealed the decision to the Missouri Court of Appeals, which in turn handed the case to the Missouri Supreme Court.

Only Judge Kelly Broniec, an appointee of Republican Gov. Mike Parson, dissented. Broniec argued that the state law requiring measures to list statutes that would be repealed is presumed constitutional.

“Because Amendment 3 had to follow Missouri law … and did not do so, I would affirm the circuit court’s judgment,” Broniec wrote.

Judge Ginger Gooch and Judge Zel Fischer concurred with Broniec’s dissent.