Missouri AG lays out abortion restrictions he argues remain in place despite Amendment 3

By Anna Spoerre

Missouri Independent

Missouri Attorney General Andrew Bailey believes the state can still enforce some abortion restrictions even after voters lifted the state’s ban earlier this month, though he didn’t weigh in on the constitutionality of a host of laws that are currently the focus of a lawsuit.

In a rare official opinion from his office, Bailey argued that while any statutes prohibiting abortion prior to fetal viability will no longer be enforceable in their entirety, the state can still enforce laws on the books related to parental consent and cases where women or children “have unlawfully been pressured to abort.”

Bailey listed five state statutes that he said will in-part be “unenforceable” under Amendment 3, which enshrined abortion-rights in the Missouri Constitution. But he also included circumstances where he “will vigorously enforce” limitations on abortion.

The unlabeled opinion was posted on Nov. 22 to the attorney general’s website and was addressed from Bailey to Gov.-elect Mike Kehoe, seemingly at Kehoe’s request.

“Should Amendment 3 be construed more narrowly by courts or be amended or repealed in the future to permit greater protection of unborn life, that will automatically restore authority to the attorney general and other officials to resume broader enforcement,” the opinion concluded.

Bailey is a defendant in an ongoing lawsuit filed Nov. 6 by the state’s Planned Parenthood clinics seeking to strike down several “targeted regulation of abortion providers” laws enacted by the legislature, including a mandatory 72-hour waiting period between the initial appointment and a surgical abortion and mandatory pelvic exams for medication abortions.

The lawsuit does not challenge parental consent laws.

Planned Parenthood leadership has said they hope to have a decision from a judge that would allow them to start performing abortions at three clinics across the state as soon as the new amendment goes into effect Dec. 5. Even before abortion was banned two years ago, most abortions in the state had ceased as a result of the TRAP laws.

A hearing regarding the clinics’ request for a preliminary injunction is scheduled for Dec. 4 in Jackson County. Bailey’s legal team has also filed a motion requesting the case be moved to Cole County.

Bailey’s opinion does not address any of Missouir’s TRAP laws. It instead lists statutes that set restrictions on abortion based on gestational age, including the state’s trigger law which was passed in 2019 and went into effect in June 2022, when the constitutional right to an abortion was overturned. That law, which remains until Amendment 3 goes into effect after Dec. 5, bans nearly all abortions with exceptions only in cases of medical emergencies.

While Amendment 3 protects the right to all abortions prior to fetal viability, it also allows the legislature to regulate abortion after fetal viability unless “needed to protect the life or physical or mental health of the pregnant person.”

Fetal viability is the time in pregnancy when a fetus can survive on its own outside the womb without extraordinary medical interventions. While viability is generally considered to be about the mid-point in pregnancy, between 20 and 24 weeks, there is no exact gestational definition. Abortions later than 20 weeks in pregnancy make up fewer than 1% of all abortions in the United States.

The attorney general’s opinion points to a 2017 law that regulates abortion after fetal viability except when a woman’s life is in danger due to a physical illness or injury. He does not specify which parts of that law his office would or wouldn’t enforce.

Under this law, if a fetus is past 20 weeks gestation, a physician is required to first determine if the pregnancy was viable. They are then required to get a concurring opinion from a second physician trained in maternal-fetal medicine. Both doctors then have to report their findings to the health care facility they work at.

“Any physician who performs or induces an abortion upon a woman when it has been determined that the unborn child is viable shall utilize the available method or technique of abortion most likely to preserve the life or health of the unborn child,” the statute reads.

Bailey’s letter further sets the stage for debates around abortion that are expected to dominate the legislative session, which begins in January.

Republican lawmakers have said they plan to give Missourians the opportunity to vote on abortion again through a legislature-proposed amendment.

Amendment 3 ultimately passed with 51.6% of the vote. Of the nearly 3 million votes cast, more than 95,000 yes votes edged out those hoping to defeat it.

“In a contest where the ‘yes’ side was able in effect to rewrite the ballot summary language, received tens of millions of dollars in funding from out of state, and outspent the ‘no’ side 6 to 0,” Bailey wrote, “This tight margin suggests the result may be very different if a future constitutional amendment is put up for a vote.”

More than a year before the election, Secretary of State Jay Ashcroft was ordered by a judge to change the ballot summary language he drafted, which would have asked Missourians, in part, if they wanted to “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth.”

Bailey’s opinion was published the day after former Florida congressman Matt Gaetz withdrew from consideration for U.S. Attorney General. Bailey was a finalist for the position until former President Donald Trump chose former Florida Attorney General Pam Bondi.

Rudi Keller of The Independent staff contributed to this report.