Abortion rights remained on Missouri鈥檚 Nov. 5 ballot by the slimmest of margins, according to opinions released Friday by the Missouri Supreme Court.
In a 4-3 decision on Sept. 10, the high court reversed a ruling by Cole Court Circuit Court Judge Christopher Limbaugh, who had recommended removing Amendment 3 from the ballot, saying the initiative petition had been deficient.聽
The majority opinion was written by Judge Paul Wilson, with Chief Justice Mary Russell, Judge Robin Ransom and Judge Brent Powell concurring.
The dissent was authored by Judge Kelly Broniec, with Judge Zel Fisher and Judge Ginger Gooch concurring in the dissent.
Amendment 3, if approved by a simple majority of Missouri voters, would legalize abortion up until the point of fetal viability and protect other reproductive rights, including birth control. Abortion is illegal in Missouri with limited exceptions for medical emergencies. There are no exceptions for victims or rape or incest.
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The Supreme Court, while divided, made one point clear in both the majority and dissenting opinions: 鈥渢his case is not about abortion.鈥
鈥淚t concerns only what information the constitution requires proponents to include on any initiative petition,鈥 Wilson wrote in the majority opinion. 鈥淚t is about form and procedure, not substance.鈥澛
Wilson was appointed to the court by then-Democratic Gov. Jay Nixon. Russell was appointed by former Democratic Gov. Robert Holden. Powell was appointed by former Republican Gov. Eric Greitens, and Ranson was appointed by current Republican Gov. Mike Parson.
Broniec and Gooch were also appointed by Parson; Fisher was appointed by Republican Gov. Matt Blunt.
The initial case stemmed from a lawsuit filed in late August by a group of anti-abortion lawmakers and activists claiming the initiative petition that was later certified and approved as an amendment, failed to follow a number of laws.
This includes a section of state law requiring initiative petitions 鈥渋nclude all sections of existing law or of the constitution which would be repealed by the measure.鈥
The plaintiffs 鈥 state Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, anti-abortion activist Kathy Forck and shelter operator Marguerite Forrest 鈥 sued Secretary of State Jay Ashcroft arguing the initiative petition failed to state any laws that would be repealed if it passed.
Attorneys for Missourians for Constitutional Freedom, the campaign behind the ballot measure, have said the amendment would not repeal the state鈥檚 current abortion law or take it off the books. Instead, they told the courts, it would create a new law that would supersede much of the existing one because not every element of the current law would be rendered moot, including laws protecting women who get abortions from prosecution.
They also argued anything that falls under the scope of the amendment would be left to the judicial system to interpret and not truly repealed just in the amendment鈥檚 passing.
A majority of the Supreme Court ruled that interpreting the law to require listing every possible provision that could be impacted by an amendment would have 鈥渁bsurd effects.鈥
鈥淚t seems reasonable to expect that few聽鈥 if any聽鈥 initiative petitions could survive under such a statute,鈥 Wilson wrote.
He added that to interpret the statute as such would be unconstitutional because it would impede citizens鈥 right to the initiative petition process.
鈥淚n fact,鈥 Wilson wrote, 鈥渋t is hard to imagine how a statute could impair and impede the initiative process more.鈥
Broniec, in her dissent, took a broader interpretation of the word 鈥渞epeal,鈥 saying that it is also defined as the ability to 鈥渆ffectively render invalid.鈥
She called the majority opinion 鈥渁n absurd result contrary to the plain language鈥 of the state constitution.
If Amendment 3 passes, Broniec wrote, Missouri鈥檚 current abortion ban cannot continue to stand. She noted a handful of other current laws that could be in conflict with the amendment, including parental consent for minors and the mandatory 72-hour waiting period between meeting with a doctor and receiving an abortion.
The Supreme Court published its decision on Sept. 10, a few hours after oral arguments were completed and less than three hours before the constitutional deadline to remove a question from the ballot.聽
Coleman, one of the plaintiffs and an attorney, said in a statement Friday, 鈥淭he court was right about one thing in today鈥檚 released opinion, their decision isn鈥檛 about abortion. It is about abrogating the will of the general assembly by using absurd arguments to reach their desired result.鈥澛
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The Post-Dispatch contributed to this report.