The ruling came as a “surprise” to pro-choice and anti-abortion groups alike, the Missouri Independent reported this week. With it, the Supreme Court of Missouri has effectively allowed the state to enforce a raft of anti-abortion laws that had been challenged by two Planned Parenthood affiliates, which argued that such laws now violated the state constitution, thanks to Amendment 3. After last week’s ruling, Planned Parenthood health centers in the state—Missouri’s only abortion clinics—canceled upcoming appointments and advised patients that they could instead go to neighboring Kansas or Illinois, where abortion is legal. For now, those patients, and any Missourian who needs an abortion, have found themselves right back where they would have been had Amendment 3 never been on the ballot.
For some advocates in Missouri who had worked on Amendment 3, however, there was nothing all that surprising in the state Supreme Court’s ruling. They saw it as a reality check. “There is no way to responsibly sugarcoat what’s playing out in the state,” the What’s Next for Missouri coalition told me in a statement from the group. The coalition was founded by longtime Missouri reproductive justice advocates, as well as former staff of Planned Parenthood affiliates in Missouri who quit over their concerns about the ballot measure. “Amendment 3 was a limited and symbolic win,” the coalition said. “In reality, it has failed to protect pregnant people’s bodily autonomy. Inaccessible abortion is just the tip of the iceberg.”
Not long after the election, the two Planned Parenthood affiliates that have health centers in Missouri challenged many of those laws as “presumptively unconstitutional,” citing Amendment 3. Their petition, filed in the circuit court of Jackson County by Planned Parenthood Great Plains and Planned Parenthood Great Rivers-Missouri, also requested that the court temporarily block such laws while the case played out. That included the total abortion ban triggered after Roe, as well as laws meant to restrict abortion access even if it were not technically banned, such as mandatory waiting periods and mandatory ultrasounds. In a pair of rulings in December and February, Judge Jerri Zhang granted the affiliates’ request for a temporary injunction on most of those laws, after which Planned Parenthood clinics in Missouri began to offer abortion again, with significant limits: only procedural abortion up to 12 or 13 weeks, no medication abortion, in just three clinics across the entire state, operating at limited capacity. Other restrictions remained, including some that were not part of Planned Parenthood’s challenge. Mandatory parental involvement laws were later challenged by the practical abortion support organization Right By You, in April. There were also restrictions that Amendment 3 did not touch: The ballot measure allows for abortion to be banned past fetal viability, the legal line after which a fetus is thought to be able to survive independently. This means that people having later abortions were left out of the promises of Amendment 3 from the start.
This legal undermining depends in part on voters not knowing that it’s even happening. The proposed anti-abortion ballot measure language did not refer to Amendment 3, nor to banning abortion, hiding its ban behind claims of ensuring women’s “safety during abortions.” For good measure, it added a ban on gender-affirming care for minors—care that is currently banned in the state. Democrats in the state legislature had tried to block the anti-abortion ballot measure proposal from advancing, but Republicans broke their filibuster with “a rare procedural maneuver to shut down debate and force a vote on a measure that would repeal Amendment 3,” as St. Louis Public Radio reported.
Two weeks later, abortion access in the state would be all but nonexistent again, after Missouri Supreme Court Chief Justice Mary Russell ordered Judge Zhang to vacate her temporary injunction and to reevaluate the Planned Parenthood affiliates’ request, this time using a stricter standard. The ACLU of Missouri, which is co-counsel in the legal challenge, told The New Republic that it had “immediately” responded to the order by sending correspondence to the court, “highlighting that our arguments met this standard.” Tom Bastian, ACLU of Missouri director of communications, added that while the group “can’t predict when the court will act, we anticipate new orders … granting the preliminary injunctions blocking the ban and restrictions, once again allowing Missourians access to abortion care.”
As the legal scholar Mary Ziegler pointed out this week, it is possible that Missourians’ abortion rights will prevail, that Planned Parenthood will get its injunction, or even that the new anti-abortion ballot measure may fail. However, as she wrote, “what is happening in Missouri is still a sign about the limits of ballot measures.” Advocates in other states should be asking: What is such a “win” worth?
The reality is that this fight for the constitutional right to abortion was playing out at the same time that our constitutional rights were being ignored and undermined on a regular basis. Before we fundraise millions more dollars to replicate the fight in other states—fundraising that will be justified as “restoring” access to abortion by making it a right—we might consider other, more immediate ways to give people what they need. That money might be better spent on paying for actual abortions, as abortion funds across the country do, helping people in the many states with abortion bans to access care. In a legal system that cannot be counted upon, there may be no more direct way of supporting a fundamental right.
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