Attendees cheer during a Missourians for Constitutional Freedom rally on May 3, after the campaign turned in 380,000 signatures for its initiative petition (Annelise Hanshaw/Missouri Independent).

One of my 6-year-olds was on the swings when a man approached and handed me a flier from Missouri Right to Life PAC titled “10 Reasons to Oppose the Pro-Abortion Initiative Petition.”

The man told me that if Amendment 3, the ballot initiative that would end Missouri’s current abortion ban, passes in November, women will be having abortions at nine months, there will be no safety regulations, and women harmed won’t be able to sue for malpractice.

“Sir, this isn’t true,” I told him.

I was breaking the rule of “don’t engage when approached by an abortion opponent” that had been drilled into me when I volunteered collecting signatures to get the initiative on the ballot.

I didn’t tell him that I was familiar with his flier and had written a point-by-point debunking of it. I did try to explain that Amendment 3 only protects abortion up until viability or when the patient is endangered, but that even the restrictions Amendment 3 allows on later abortion are unnecessary. Women who don’t want to be pregnant want to have abortions as early as possible, while would-be parents who have complications far into wanted pregnancies need time to figure out what to do.

I told him my story – that an abortion restriction had almost resulted in my kid on the swings not having a twin brother. When I was pregnant in New York in 2017, there was an inflexible 24-week cutoff in place that nearly forced us to terminate one fetus to save the other before the severity of an anomaly could be known. We fought through that and today have two healthy kids, but other aspiring parents were not so fortunate before New York reformed its law in 2019.

“I’m glad you didn’t kill your baby,” the man said.

I was stunned. I know how proponents of abortion criminalization see women like me, but it’s different to have someone tell you to your face.

When he’d first come up to me, I’d asked him the question I always wish I had the opportunity to ask of “reasonable” conservatives who think criminalizing abortion is reasonable: if abortion is wrong, why can’t you convince women of that? Why do you need to use the law to force a woman to carry a pregnancy to term against her will?

I think about this question even more than I used to since the news that abortions have increased since the fall of Roe.

Someone who does not want to be pregnant will walk over hot coals to end her pregnancy. A ban can punish her with having to travel out of state for a later abortion that is more invasive, medically involved, and expensive. It can make her stay pregnant, which for some of us means very ill, for weeks. A ban can take her away from her kids, job, school. Or force her to have a legally gray self-managed medication abortion without local medical support.

The Amendment 3 opponents have to know that they are making life more difficult and dangerous for women who need abortions without stopping them for the most part. Yet, they march on, vilifying women who need later abortions in the quest to keep it impossible to have an early one in this state.

The man answered my question as to why we should be forced to continue pregnancies unwillingly, no matter how early, with an honesty that I haven’t heard from the anti-Amendment 3 campaign: “Because it’s a human being.”

This is something Right to Life, Jay Ashcroft, Andrew Bailey, Mary Elizabeth Coleman, Mike Kehoe et al prefer not to state so plainly in defense of Missouri’s current abortion ban. Instead, they keep coming up with new ridiculous interpretations of Amendment 3 in an attempt to portray it as extreme, no matter how many times the courts explain these claims are unfounded.

They tweet, write up fliers, and file lawsuits alleging dental hygienists will be performing abortions, human cloning will be legal and malpractice laws won’t apply. Horrible women will stay pregnant for nine months only to demand abortions “the very last second that the last toenail leaves the birth canal,” as Ashcroft put it in an evocative encapsulation of their contempt for women who have abortions.

I am telling you now: they don’t believe the things they are saying about Amendment 3 and this will be proven as soon as it becomes law. They will flip flop completely (just like their compatriots in Ohio did) in order to argue that Amendment 3 actually does next to nothing to bar them from enacting and enforcing the kind of endless obstacles that made it nearly impossible to have an abortion in Missouri even before the Dobbs decision.

They make up these wild stories about what Amendment 3 will do in order to obscure what they do believe but don’t say as straightforwardly as the man on the playground: from “the moment of conception” the state of Missouri must be able to dictate what happens to a potential life rather than its potential mother. Once an egg is fertilized I am just “a birth canal.” I am a container that cannot be trusted to decide whether or not to bring a child into the world, and must be forced to do so.

And if the law causes harm or even death to the container, that is unfortunate but justifiable in service to the higher purpose of protecting potential life.

After the man walked away, my son got off the swing and asked, “Mom, why were you talking to that man for so long?”

Good question, kiddo. It was foolish to think I might convince him that I am a human being, too.

(Getty Images).

What the public thinks the law is can matter more than what a law on the books actually says.  So inaccurate or exaggerated reporting on a problematic law can make it even more harmful in practice.

Over the years, I have written about a number of viral news stories that inadvertently misrepresent the law, causing widespread misunderstanding with the potential to get people hurt.  

Some examples include viral stories that wrongly told victims and potential perpetrators that revenge porn isn’t illegal, that you have no recourse if someone refuses to stop touching your pregnant belly and that in some states it is legal to shoot an escort who refuses to have sex.  

Outraged discourse about the U.S. Supreme Court’s 2014 Hobby Lobby decision caused many people to believe incorrectly that most women had lost insurance coverage for contraception. Imprecise reporting on Texas’ “bounty hunter” abortion law has led people to think that assisting someone in obtaining a legal abortion out of state exposes them to liability, even though a Texas court has explained the law does not do that.  

You have to know your rights in order to exercise them. And if a legal problem is misunderstood, the attempted solutions may be inadequate or make things worse.

This is happening with the stubbornly enduring meme that “pregnant women in Missouri can’t get divorced” and “there are no exceptions for domestic violence.” This claim is hitting the headlines again due to the well-intentioned, but ill-considered, proposed federal legislation that it has inspired.  

I have previously explained why the portrayals of Missouri law aren’t accurate and argued that the misperception that there is no use in filing for divorce while pregnant is dangerous to women.  

No, Missouri law does not require a pregnant woman to stay with her husband

The viral story does contain a grain of truth in that there are problems with the text and application of the law that should be addressed. But reporting that misrepresents the problem provides us with outrage instead of solutions.

Despite false reporting to the contrary, Missouri’s law does not say a pregnant woman “cannot file for divorce.” Nor do we have a “law on the books” or “blanket ban” on finalizing a divorce while pregnant. 

It does not “turn out that Missouri is one of four states that doesn’t let pregnant women finalize a divorce.” 

ƒWhat is true is that Missouri’s divorce statute inadvisably requires that a petition for dissolution of marriage state “whether the wife is pregnant.” It is also true that judges do not generally finalize divorces while a party is pregnant. 

This is so that paternity can be established and custody and child support can be ordered. In the vast majority of cases, it will be to the benefit of both parties to wait to finalize so that they can avoid the time, expense and heartache of going back to court. It is also a more efficient use of the resources of overburdened courts.  

In the minority of cases where someone wants the divorce granted during pregnancy, the law gives judges that discretion. 

Whether they are willing to use it is the issue. I spoke to lawyers from different parts of the state and outside the state who have had varying experiences. Multiple attorneys told me they’d had a case in which a judge granted a divorce during pregnancy where circumstances warranted.  

One attorney told me she doesn’t know any judges who would refuse in an abuse situation. But another told me that in her area judges know the law gives them discretion but don’t feel comfortable using it even in domestic violence cases, and lawyers don’t feel comfortable pushing them. She said that these constitute a tiny number of outlier cases but that these are so extreme that the law needs to be amended to more explicitly authorize and encourage judges to handle them differently.  

So let’s do that. ASAP.  (Meet me at my Substack for more on how.)

What we should not do is continue the game of telephone that has caused people across the country to think Missouri has a special law that requires pregnant women to stay with abusers.

I did the 50 state scan that I said I wouldn’t do. By my rough count, we are one of 14 states that have statutes that require disclosing pregnancy status when filing for divorce. Another 13 require pregnancy disclosure in their court forms (which are mandatory in some states and the only real option for self-represented litigants in others).  

So essentially, the majority of states currently require disclosure at filing. 

The practice of not finalizing divorces during pregnancy is less quantifiable, but seems to be typical just about everywhere, with a handful of states making it easier to finalize before the baby is born.  

Thus, the incorrect reporting that only a few states have laws like ours is obscuring how widespread the issue is.

The story of one impacted Missouri woman who stayed with her abusive husband has been reported by multiple outlets with conflicting details about what happened.  

One report will say her lawyer told her she couldn’t file because she was pregnant.  Another will say she did file, but had to file again without any explanation of why that would happen. All of them leave the reader with the impression that her living with her husband in fear for her life was a natural consequence of Missouri’s law, rather than a situation in which something went horribly wrong. 

When I spoke to this woman last week, she did not remember her lawyer telling her she couldn’t file or giving her a reason she should wait. As she told me and has recounted elsewhere, she learned from the lawyer that she would need to disclose her pregnancy and because of her pre-existing impression that judges won’t grant a divorce if they know a person is pregnant, abandoned her effort to file.

I see that as an information problem that caused a woman in crisis to endure further suffering unnecessarily. The virality of “pregnant women can’t get divorced” can only make that information problem exponentially worse.  

Even worse would be legislation that doesn’t solve the problem — or exacerbates it.

The bill proposed at the state level that inspired the first round of media coverage would amend the list of required statements in a divorce petition to read: 

(5) Whether the wife is pregnant; however, pregnancy status shall not prevent the court from entering a judgment of dissolution of marriage or legal separation;

That maintains the bad disclosure requirement while going too far on the finalization issue. 

Courts need to be allowed to delay a divorce judgment because of pregnancy status. For example, if all other issues are resolved and a husband wants the divorce granted immediately, but the wife needs to stay on his health insurance, or if the pregnant spouse does not want or cannot afford to have to come back to court after the child is born.  

Proposed federal legislation called the “Pregnancy Empowerment Act,” has been endorsed by 28 members of Congress and major domestic violence groups. It is also not good.  

A press release about the bill says that it will both “prohibit any jurisdiction from requiring the disclosure of pregnancy when filing for divorce” and “prevent states from considering a person’s pregnancy status when finalizing a divorce.” 

I don’t read the bill to do either of those things, but the latter provision would be bad if it was in there. The substance of the bill reads:

“No state may take pregnancy status into consideration when considering the filing of a petition for divorce.”

It would require states not to “consider” pregnancy status at filing but doesn’t say they can’t make you disclose it in order to file, as most states currently do. And it isn’t empowering to bar courts from considering pregnancy status at filing if the pregnant party wants it considered. For example, being pregnant could be a reason to argue the court should order more temporary support because it impacts how much a party can work, or that the court should let the pregnant party stay in the marital residence, or that the pregnancy is more reason an order of protection is needed. 

Pregnancy could even be a reason to argue the divorce should be expedited.  

Despite what the press release says, the bill would not bar courts from considering pregnancy when finalizing either, and it would be a bad idea to amend it to do so because people may want their pregnancies considered for the reasons discussed above.  

My understanding is the “Pregnancy Empowerment Act” is a well-intended response to the national outrage that has flowed from misrepresentations of Missouri’s law. It’s an example of how the stories we tell about the law change behaviors and legislation. 

So let’s get them right. We want women to know they have rights under current law, and, where those rights are falling short, enact targeted solutions to fix the actual problems.  

The Missouri Department of Social Services has turned the process of applying for SNAP into a Kafkaesque obstacle course, which a federal judge ruled in May violates federal law (Annelise Hanshaw/Missouri Independent).

SNAP, the Supplemental Nutrition Assistance Program, formerly known as “food stamps,” is our foremost tool for keeping low-income families and people with disabilities from going hungry.  

It’s also a deal for the states.  

The federal government pays 100% of the cost of the food benefits and 50% of the cost to administer them. SNAP not only allows us to meet a basic need for our most vulnerable citizens, but that money from the feds goes straight into our local economy as recipients purchase groceries and have funds freed up to spend on other basic needs like transportation and child care.  

Studies show that being able to access SNAP leads to a host of other upsides ranging from higher SAT scores to lower healthcare costs to increased earning power.  

In Missouri, however, we can’t have nice things.  

The administration of the SNAP program is one of a slew of examples of the state failing to get federal funds to the Missourians they are intended for.  

The Missouri Department of Social Services has turned the process of applying for SNAP into a Kafkaesque obstacle course, which a federal court ruled in May violates federal law.

Applying for SNAP involves three steps: 1. Filing an application. 2. Having an interview. 3. Submitting verifications of income, assets, disability status, household characteristics, etc.

Federal court rules Missourians were illegally denied food aid by the state

Missouri has drastically reduced the ability to complete any of these steps in person, instead routing applicants to a call center where people regularly wait on hold for hours only to have their call “deflected,” which is DSS’s euphemism for “dropped.” 

People stay on hold for hours multiple days in a row without ever reaching a human for an interview. Then DSS denies the application for failure to complete the interview that DSS has failed to give them. Some months, more than half of those denied benefits are denied not because they were ineligible but because they didn’t complete the interview they couldn’t get.

One of the plaintiffs in the SNAP lawsuit, Mary Holmes — who has throat cancer and COPD and doesn’t have internet or transportation — spent hours on hold over many days using up her prepaid cell phone minutes just to ask for an application.  

The automated system has no option to request that one be mailed to you. Holmes ultimately paid someone for a ride to a DSS office where she was able to file an application but was told there was no staff to interview her. Then she spent more days on hold trying and failing to get an interview before having her application denied for not having an interview.

Others who can’t reach anyone at the call center go to DSS in person only to be pointed to a phone and told to call the call center.       

The details in the lawsuit paint a picture of such shocking incompetence (or deliberate malfeasance?) that you’d think Gov. Mike Parson and his DSS director, Robert Knodell, would be embarrassed. 

It is baffling that they would defend this lawsuit rather than seeking to settle it by fixing the problem.

Instead, the state has doubled down, letting the call center remain a mess for the two years since the lawsuit was filed while making unsound arguments in court that the plaintiffs don’t have standing to sue and that DSS is immune from litigation.  

Now, Attorney General Andrew Bailey has appealed even though there isn’t even a final judgment to appeal from. All the lower court has done so far is order the state to develop a remedial plan and file monthly reports on wait times and dropped calls. But instead of trying to remedy the problem, our officials are spending taxpayer dollars to continue fighting for the right not to fulfill their legal obligations to Missourians.

This is part of a pattern.  

Missouri children are losing Medicaid coverage at rate that is alarming pediatricians

Daycares are closing because the state can’t manage to get federal child care subsidies disbursed, even though the governor has claimed dealing with the child care crisis is a priority.  

Missouri’s worst-in-the nation wait times for Medicaid applications and renewals have drawn a federal investigation. Missouri kids are finding out at the pediatrician’s office that they’ve been kicked off Medicaid and getting sicker from manageable conditions.  

The DOJ found that Missouri is unnecessarily institutionalizing thousands of adults with mental illness in inappropriate nursing homes in violation of federal law.  

The state takes federal disability and survivorship benefits owed to foster care children despite bipartisan support for a bill that would have ended the practice.  

I don’t understand why these aren’t major scandals. Instead, each failure is met with officials shrugging and pointing the finger at somebody else: The closing day cares are a contractor’s fault. Medicaid wait times are due to understaffing and antiquated computers. The SNAP call center is overburdened because applicants are choosing the wrong menu option.  

In the SNAP case, Judge Douglass Harpool essentially said, “figure it out.”  

He acknowledged that there are many demands for the state’s resources, but found it “a challenge” to believe the state can’t administer a program where the federal government pays all of the benefits and at least half of the administrative cost. This is especially so, he noted, given that Missouri has received additional pandemic funds from the federal government, and cut taxes while the SNAP program has been inadequately administered.  

In fact, the federal government barred states from using COVID funds for tax cuts. But that’s hard to enforce because money is fungible, so Missouri did it anyway.  

Furthermore, Missouri has rejected opportunities to streamline the eligibility process. We are one of only nine states not to have implemented “broad-based categorical eligibility.” Instead, the legislature gave lip service to solving the problem of recipients losing benefits due to meager pay increases by creating a convoluted new program that was never implemented because it wasn’t funded and would have required DSS to build a whole new system to administer it on top of the already broken one.

There is just no excuse for this.

I was surprised to learn recently that the famous sign on Harry Truman’s desk reading “The Buck Stops Here,” says “I’m from Missouri” on the back. These days, the “Show-Me State”  looks more like the “Pass the Buck State” to me.  

Poor people aren’t politically powerful. So it’s easy for officials to throw up their hands at the rampant mismanagement and neglect that is depriving them of federal support they are owed.  

But we all ought to demand more from our elected officials and political candidates. Minimally competent governance is not too much to ask. 

Alarmist stories about our state’s problematic-but-typical divorce law risk deterring Missouri women from getting needed legal help (Oscar Wong/Getty Images).

The idea that “pregnant women in Missouri can’t get divorced” and therefore can’t leave abusive husbands has gone viral.  

This is a dangerous misunderstanding of law that is likely to make a pregnant Missourian think there is no use in filing for divorce when she may need to start the process and get a separation agreement, an order of protection, or child support while the divorce is underway.

One news story after another has portrayed Missouri law as uniquely awful. A number have featured the stories of women who sought to file for divorce but were turned away by lawyers who told them to “come back when they’re not pregnant.”

If a lawyer tells you something to that effect, you have reached a bad lawyer and must find a better one.

What Missouri’s statute requires is that a petition for divorce state whether a party is pregnant.  This is bad for reasons I will explain below. However, it does not mean women are “not allowed to file for divorce” and it is not unique to Missouri. 

For example, the blue and purple states of Illinois, Delaware, Colorado, and Michigan have statutes that say the same. The littlest bit of research reveals that the oft-repeated and weirdly specific claim that only three other states (Arkansas, Texas and Arizona) have similar laws is wrong. I found at least ten states with similar statutes, and without doing a comprehensive survey, I can’t tell you if that number is closer to fifty.

It is true that judges in Missouri and elsewhere don’t typically finalize divorces when a party is pregnant. The reason is that, ideally, a divorcing couple with kids will have child support and custody agreements in place when they finalize the divorce. That isn’t done before the court has jurisdiction over the baby once it has been born and things are known like paternity and whether the baby has special needs impacting how much child support is necessary.  

Another reason to wait to finalize is that a divorce decree will disqualify a pregnant person from being on her former partner’s health insurance plan. 

But should a party nevertheless wish to finalize a divorce during pregnancy, there isn’t actually anything in Missouri law barring a judge from doing so.

Divorces, especially with kids, can indeed take a long time, but this is not a Missouri thing. Some states even have mandatory waiting periods. In California, for example, where the petition form asks if there is a “child who is not born,” no divorce can be finalized until six months after filing, and lawyers warn it will likely take twice that long.  

It is not necessarily bad that a judge will wait to finalize a divorce until a baby is born. And it is definitely not something that should stop a pregnant woman from starting the divorce process, especially if she needs other legal protections. In many jurisdictions, just the filing of the petition triggers automatic orders that are particularly important in situations of financial abuse, prohibiting things like disposing of assets or dropping a spouse from insurance policies. 

It is a problem that Missouri and so many other states require a person to disclose her pregnancy status in order to file for divorce (or, alternatively, to perjure herself). The intent was to make sure that fathers financially support future children of the marriage, but mandatory disclosure is an invasion of privacy. Worse, it is a potential threat to one’s safety—pregnancy increases a woman’s risk of being a victim of homicide significantly.

And mandatory disclosure is particularly dangerous in Missouri given our abortion ban. An abuser can scare a partner or ex with threats of law enforcement involvement should she seek to terminate the pregnancy or if she miscarries, whether those threats are legally realistic or not.

So Missouri legislators should amend our divorce statute to eliminate required disclosure of pregnancy status. As should the blue states that have the same requirement. 

A petition for divorce should give one the option to seek support for an anticipated child. If someone really does prefer to come back to court after the divorce is final to seek child support, she should be able to do that. She should not be required to tell her husband and the court that she is pregnant at filing.

But I am not going to hold my breath for our dysfunctional Missouri legislature to fix the statute quickly. I want women to understand now that they are absolutely not “legally prevented” from leaving their husbands while pregnant, and they may be best served by starting what could be a long and painful process as early as possible. 

State Rep. Ashley Aune introduced a bill in the past two legislative sessions that would make it explicit in Missouri law that “pregnancy status shall not prevent the court from entering a judgment of dissolution of marriage or legal separation.” I asked her if she shares my understanding that nothing in current Missouri law bars a judge from finalizing a divorce when a party is pregnant, which she does. The problem that she is trying to address is what is happening in practice. 

To the extent the practice is a problem, it can only get worse if news stories and tweets overstate the issue and lead pregnant women, lawyers and judges to think there is a hard and fast rule when there is not.

Missouri is backwards on women’s rights in so many ways, but this isn’t one of them.  

That is not to say that any of this is easy or straightforward.  It is difficult to find a lawyer or represent yourself, and exponentially harder if you are low income, trying to take care of kids, or in an abusive marriage.  But waiting until a child is born doesn’t necessarily make anything simpler and has the potential to make things much worse.  

Misinformation can be extremely disempowering. Let’s stop telling women there is nothing to be done while pregnant and instead support them in the difficult steps of leaving — both physically and legally.

The Missouri state flag is seen flying outside the Missouri State Capitol Building on Jan. 17, 2021 in Jefferson City (Michael B. Thomas/Getty Images).

Missouri’s legislative session closed with a sad and stunning display of how little the loudest lawmakers identifying as “pro-life” care about helping children and families — or governing at all.

Even in a session that was historic for its dysfunction and rancor, there were a handful of bipartisan bills that would have made life somewhat better for Missouri families that should have made it to the governor’s desk. 

Instead, “Freedom Caucus” Republicans denied us those modest improvements in order to show off their anti-abortion, anti-democracy, pro-MAGA cred.   

Republican legislators expect voters to overturn Missouri’s criminal abortion ban if given a fair chance to vote on a reproductive freedom proposal in November. So they made thwarting the will of the people their number one priority this legislative session.

Weeks of session were lost to their effort to gut the initiative petition process, ultimately fizzling out over the Freedom Caucus’ insistence that it include “ballot candy” aimed at tricking Missourians into voting against their own interests.

The gridlock caused by a handful of obstructionists killed the final week of the session — and along with it important policies that enjoy the support of a majority of legislators and citizens. 

It’s especially problematic that the ploy to further enshrine minority rule was undertaken in the name of “protecting life” while tanking bills protecting children and pregnant women.

Missouri is emphatically not a pro-child, pro-mother or pro-family state to begin with. The legislature regularly refuses to accept federal funds to help struggling Missourians. 

It took a ballot initiative and litigation to finally expand Medicaid. When our legislature managed to accept federal funds so postpartum women could have a year of Medicaid coverage, it was celebrated as a rare bipartisan win. But that took a year longer than it should have thanks to hardliners fighting it on the theory that a woman who had an abortion might get coverage. The delay likely resulted in additional preventable postpartum deaths.

Missouri has a maternal mortality rate that is more than double that of the nation’s already unacceptable one.  Close to half of Missouri counties have no maternity care and another 21% have as few as one OB/GYN. Missouri’s OB/GYN shortage is being exacerbated by the abortion ban.

Missouri’s infant mortality rate is higher than that national average and our preterm birth rate earned us a D- from the March of Dimes. 

Missouri has a syphilis crisis that is causing women to give birth to stillborn babies, yet Republicans prioritized passing a (likely unconstitutional) bill that prohibits low-income individuals on Medicaid from using their health insurance to receive testing or care at Planned Parenthood, despite the lack of other providers in the state.   

Missouri has been kicking eligible kids off Medicaid in large numbers thanks to poor management of the eligibility review process.  A federal judge ruled that Missouri is illegally denying food insecure Missourians SNAP benefits. Missouri’s understaffed foster care system separates children from their parents at twice the national rate and then loses track of them. 

I could go on.

There are Missourians working very hard to address problems for kids and families. Some of them are Republican legislators. But their work this session was thrown away by a minority of their colleagues.  

Take the child care bill. Half of Missouri children under 5 live in child care deserts. This has devastating impacts on parents’ ability to work to provide for their children and on Missouri’s economy.  The bill would have used tax credits to make child care more available and affordable. It had bipartisan support and was a top priority that Gov. Parson touted in consecutive State of the State speeches. 

But Freedom Caucus members and their sympathizers decried it as welfare. Sen. Mike Moon implied that mothers ought to stay home with their children like his wife did.  Of course, Freedom Caucasers are fine with Missouri’s astronomical tax credits for donors to anti-abortion “pregnancy resource centers.” In their view, tax credits should go to misleading and pressuring women to continue pregnancies, but not to caring for their children once born.

Moon was the only senator to vote against a bipartisan bill that would have banned child marriage (he famously endorsed 12-year-old marriage last session). The bill, intended to end forced marriages, ultimately died as time ran out in the House after being stalled by a few Republicans who argued it was an intrusion on parental rights that could lead to pregnant minors ending their pregnancies rather than getting married.

A bill with no apparent opposition would have barred the state from taking benefits owed to orphaned and disabled foster care children to pay for their care.

Another bipartisan bill lost to a combination of Republican infighting and anti-abortion extremism would have enacted health protections for women and babies.  

It would have added additional prenatal testing for treatable conditions that are harmful or fatal to babies, like syphilis and HIV. It would have improved regulations related to mammograms, STI treatment, and access to rape kits. It would have helped Missouri women (375,000 of whom live in contraception deserts) to avoid unintended pregnancy by requiring their private insurance to cover dispensing of a year’s worth of contraception at once, as 26 other states do.  

The bill was held up by House Republicans confused about the difference between birth control and abortifacients before it made it to the Senate, where it died amidst the Freedom Caucus chaos.  

It is well documented that anti-abortion states have worse outcomes for women and children. Abortion restrictions correlate with a lack of policies aimed at protecting their health and well-being. That might seem like a hypocrisy problem, until you recognize that the most powerful abortion opponents are ideologically opposed to public support of women, children, and families.  

What it is, is a democracy problem. If you have a minority viewpoint, the only way to impose it is through antidemocratic means. That is as true of blocking child care as it is of outlawing abortion.

[Disclosure: I support the reproductive rights initiative petition and volunteered collecting signatures for the campaign.]

Missouri Attorney General Andrew Bailey (photo submitted).

Missouri had an embarrassing trip to the U.S. Supreme Court last month, and things have gone downhill from there. 

Murthy v. Missouri (formerly Missouri v. Biden), was filed in 2022 by our then-Attorney General Eric Schmitt and his Louisiana counterpart. They sued a slew of federal government agencies alleging that the agencies’ discussions with social media platforms about content moderation violated the First Amendment.  

The case is an attempt to avenge those who believe that efforts by private companies and the federal government to diminish election and vaccine misinformation, hate speech, calls to violence and foreign influence amount to a conspiracy to discriminate against conservatives.  

It’s a special kind of embarrassment for Missouri for multiple reasons. 

The first is that Missouri and Louisiana put a bunch of lies in the record that their hand-picked Texas judge accepted, but these lies were exposed by the time the case got to the U.S. Supreme Court, making us look like clowns to even the conservative justices. 

Worse, the mess of a factual record makes the case a terrible vehicle for clarifying the very important question of when government speech aimed at influencing citizens’ speech, known as “jawboning,” crosses a line into government coercion that violates the First Amendment.

The second is that Missouri Attorneys General Schmitt and his successor, Andrew Bailey, have been ridiculed by legal experts across the political spectrum for their hypocrisy on free speech, given their anti-speech actions outside of this case as well as their broader abuse of the legal process to fight culture wars.

The third is that this dangerous effort to limit free speech in order to foster disinformation has been quite effective

Lies and other weirdness in the Murthy v. Missouri record

Social media companies have economic and societal interests in not having misinformation and hate speech infect their platforms. 

It’s not good for business to have a platform devolve into a swamp where advertisers see their content next to neo-Nazi propaganda. Nor for a platform to become known for perpetuating conspiracy theories. Or promoting outbreak-causing anti-vax content. Or fomenting violence. 

This is why social media companies have trust and safety teams, terms of service agreements and content moderation policies that forbid or demote some speech that the First Amendment protects. 

Sometimes, government officials alert social media companies when misinformation is flowing on a platform, as when foreign agents are impersonating Americans to spread election disinformation. Sometimes government officials loudly criticize companies for not dealing with misinformation or failing to adhere to their own policies. Other times, private companies consult government experts when they are trying to suss out what is misinformation and what isn’t, for example as they attempted to tamp down vaccine misinformation during the pandemic.  

Bailey calls all this “a vast censorship enterprise.”

Missouri and Louisiana argued in Murthy v. Missouri that our federal government and social media companies talking to each other must stop. Bailey insists we need “a wall of separation between tech and state.”

But such a wall would actually be an unconstitutional restriction of speech. Social media companies have a right to speak to the government (or anyone else) and a right to control what speech appears on their platforms. The First Amendment doesn’t restrict these companies from limiting users’ speech because they are not state actors.

This is a problem for the effort to force companies to be more hospitable to disinformation and incitement. Missouri and Louisiana attempted to get around this by alleging that actions taken by the platforms were the result of government coercion. People who were there at the time, like former head of trust and safety at Twitter Yoel Roth, say that’s not what happened. 

If the government was threatening companies into censoring speech, that would indeed be a First Amendment violation. But after an extensive (and likely expensive) fishing expedition, the attorneys general couldn’t find evidence of coercion — so they made some up.

In one particularly flagrant lie to the court, Missouri took an angry email from a White House official on an unrelated topic and pretended it was a demand that Facebook censor content. 

The oft-quoted email read: “Are you guys f**king serious? I want an answer on what happened here and I want it today.” 

That may be an unprofessional email, but it wasn’t about anything having to do with content moderation. It was taken from an exchange complaining about users being blocked from following the president’s Instagram account, which Facebook said was due to a technical problem. 

Numerous other inaccuracies in the record have been cataloged by TechDirt’s Mike Masnick, Tech Policy Press, and others. 

At oral arguments, multiple Supreme Court justices called out the lies in the record and a majority seemed loath to accept the states’ invitation to upend existing precedent under which the government is perfectly free to use persuasion to affect speech, but not coercion.

Bailey is Missouri’s speech coercer-in-chief

Many have noted that Bailey’s position in Murthy v. Missouri is incompatible with his position in two related cases concerning social media companies.  

The Netchoice cases are challenges to laws passed by Texas and Florida that prohibit social media companies from moderating content in ways that discriminate on the basis of viewpoint. In other words, the laws would compel speech by requiring platforms to host content that they deem inappropriate or harmful. 

This seems like a straightforward First Amendment violation, but Bailey filed an amicus brief arguing the laws should be upheld. 

That is because Bailey is not seeking to protect against government intrusion on free speech. 

On the one hand, he wants to bar the federal government from even criticizing speech he is in favor of. On the other, he wants state governments to be able to use the force of law to impose speech restrictions that require the platforming of right-wing misinformation and propaganda that the free market would otherwise diminish. 

It’s a “heads-I-win, tails-you-lose” theory of free speech.

Worse, Bailey has repeatedly engaged in coercive behavior in his official capacity in order to suppress speech he doesn’t like. 

Bailey joined a group of Republican attorneys general in sending a letter to Target threatening the company with legal consequences for selling LGBTQ-themed Pride gear.  As First Amendment lawyer Ari Cohn wrote, Target’s products were “emphatically, and unquestionably protected by the First Amendment,” and the attorneys general’s letter implicitly condoned threats of violence against Target employees that had caused the company to remove or relocate the merchandise.  

Bailey has also filed a lawsuit seeking to enjoin Planned Parenthood from referring minors out of state for legal abortions, which is also clearly protected by the First Amendment.  

Asked to respond to criticism of the lawsuit from me and others, Bailey admitted that giving out information about obtaining an abortion out of state is not illegal. 

Most recently, Bailey has taken a lighter to the First Amendment by using his governmental power to punish Media Matters for reporting things that he doesn’t want reported.  

Media Matters, a left-leaning non-profit media watchdog, reported on the fact that since Elon Musk took over Twitter there has been an increase in hate speech that caused advertisements to appear next to neo-Nazi content.  Musk doesn’t deny this happened, but nonetheless sued Media Matters for reporting that it did. A similar lawsuit Musk filed against another group has already been dismissed by a judge who didn’t mince words, “This case is about punishing the defendants for their speech.”

Bailey, in an olympic act of Musk sycophancy and “free speech for me, but not thee” legal innovation, has sought to add some governmental muscle to Musk’s anti-speech crusade by claiming that Media Matters has violated the Missouri Merchandising Practices Act, on the absurd theory that the organization duped donors into supporting the kind of work it has always done. 

Bailey can lose in court, but succeed at suppressing vital speech

Bailey, his predecessor and the big guys whose favor they are seeking are on the wrong side of the First Amendment. They will ultimately be told this by the courts.  

But they are succeeding at chilling speech and imperiling our democracy in the meantime.  

Media Matters and Planned Parenthood will defend themselves and eventually prevail, after having precious dollars, time and energy stolen from their speech-dependent missions by frivolous litigation.  

For Target, Google and others, it may be simpler to cave to the pressure and self-censor.  

Murthy v. Missouri has already resulted in serious damage. Despite the stays of the lower court injunctions, the federal government and independent researchers largely stopped communicating with social media companies, ceasing efforts to combat the viral spread of disinformation. It was only after Missouri and Louisiana’s embarrassing showing at oral arguments that the FBI resumed alerting social media companies to foreign influence campaigns.

This is a real problem in an era of anti-vax fueled measles outbreaks, death threats against blameless election workers and foreign misinformation campaigns aimed at influencing our upcoming election.

Facts are vital to a functioning democracy.  Bailey’s speech authoritarianism is an attempt to drown them out.

Attorney General Andrew Bailey speaks on Feb. 29, 2024, at the Boone County Republican Lincoln Days dinner in Columbia (Rudi Keller/Missouri Independent).

The secretly filmed video of a young woman who works at a Missouri Planned Parenthood clinic ends with an image of crosshairs and a call to “Be Brave. Do Something.” 

Project Veritas is a far-right organization that surreptitiously films employees of organizations that it opposes, deceptively edits the videos, and then uses them to direct public fury at its targets. By the time their lurid allegations get debunked, it’s too late.

Sometimes there’s an official investigation that clears the target of wrongdoing, or reporters apologize after falling for a stunt, or a victim successfully sues for defamation. Too late. Reputations have been ruined, jobs lost, rape and death threats sent, organizations defunded or shuttered.

Project Veritas’ tactics have been adopted by its associates in the anti-abortion movement, including David Daleiden, who used doctored videos of Planned Parenthood employees to push the “selling baby parts” lie that led to twelve people being shot, three fatally, by a deranged man repeating it.

That day in 2015 when Richard Dear took his rifle to the Planned Parenthood in Colorado is not one I will ever forget. And I remember shortly thereafter watching angrily as the bullet proof glass went up at my office at a reproductive rights organization because I’d known it was inevitable something very bad would come from those videos.

Missouri AG sues Planned Parenthood over Project Veritas video involving fictional girl

When I saw Project Veritas’ Missouri video three months ago, I wanted to write about it, but decided I would only make things worse by giving it attention. I try to censor my fears of violence because I don’t want to exacerbate those of others, or give anyone ideas.

And anyway, Project Veritas was a dying operation due to the defamation settlements, the financial scandal, and the fact that everyone knows at this point that it is a purveyor of dangerous lies. 

Enter Missouri Attorney General Andrew Bailey.

Last week, Bailey reinvigorated my fear of Project Veritas-inspired anti-abortion violence by filing a lawsuit against Planned Parenthood based entirely on the edited video. Bailey cannot win this lawsuit for reasons I will explain below.  What he can do is vilify abortion providers and amplify and legitimize the call to “Be Brave. Do Something.”

The video features a male voice asking a clinic worker about whether a thirteen-year-old can get an abortion at a Planned Parenthood in Kansas without her parents knowing.  The clinic worker offers information packets and repeatedly tells him the clinic in Kansas can help.

The male voice is creepy and it appears Project Veritas is implying that the worker should have taken him to be an adult abuser who had impregnated a child. I’m doubtful what Project Veritas is showing us on the video is an accurate depiction of what happened, but let’s pretend for the sake of argument that the worker should have suspected him of impregnating a girl who is not present.

What should she have done then?

Anything she could to get that girl to a doctor. 

This fictional girl needs medical care immediately, whether or not she wants an abortion, and that medical care is an opportunity for other interventions. It doesn’t help the girl to spook the suspected abuser and cause him to seek an abortion outside of the medical system or leave the girl to stay unwillingly pregnant. The smart move is to reassure him that if the girl sees a doctor it will be fine.

In Kansas, getting an abortion would necessarily involve intervention because the “bypass” of parental consent that Bailey tries to make seem illicit is the judicial bypass that a minor must obtain in lieu of parental consent. 

It might also be wise for a worker encountering a creepy man at her Planned Parenthood clinic to consider her personal safety, smile, and tell the creeper that everything will be fine until he goes away.

Yet Bailey, who says he wants to “eradicate” Planned Parenthood, makes the inflammatory and inciting allegation that the video is evidence of “trafficking minors.”

Bailey claims that giving out information about abortion in Kansas violates a Missouri law that gives parents and prosecutors a right to sue someone who “aids or assists” a minor in ending a pregnancy without parental consent. On that basis, Bailey is seeking to enjoin Planned Parenthood from telling minors that abortion is available out of state.

You don’t need to be a lawyer to think that sounds like a First Amendment violation. 

It is — the Supreme Court of Missouri has already said so in regard to this very statute. 

In a 2007 decision, the Court said that “aiding and assisting” as used in the statute cannot include speech.  

The court also explicitly stated that the statute cannot constitutionally apply to out-of-state conduct, specifically that of clinics in Kansas. There is nothing illegal about sharing the information that help is available from out-of-state. 

Furthermore, the court affirmed a lower court judgment that set out an incredibly high burden for proving liability.

A defendant must have acted with the specific intent to violate the statute, had general knowledge of Missouri parental consent law, actual knowledge that the person is a minor, actual knowledge that the minor doesn’t have parental consent and isn’t likely to get it, and the minor must have actually obtained an abortion. That would be a high bar to meet in any case, it’s an impossible one where the minor never existed.  

Bailey is aware of the court’s decision because someone in his office is capable of rudimentary legal research. Yet he fails to cite it and make any attempt at arguing that it doesn’t doom his effort against Planned Parenthood.

This is because Bailey’s lawsuit is not a genuine attempt to get an injunction. It is a messaging document in the style of a Project Veritas video in that it identifies and vilifies real people with misleading or false information presented as fact.

It starts with mischaracterizations of what was found in previous litigation with Planned Parenthood. It lies about a doctor who has nothing to do with his case. It names the clinic workers whose faces Project Veritas is spreading all over the internet.

What it does not do is present evidence that what is left of Missouri’s “aid or assist” law has been violated. It doesn’t even say Bailey has bothered to obtain and review an unedited version of the video that is his only evidence of something.

Bailey doesn’t actually believe the video shows evidence of “child trafficking” or he would have taken action when it came out three months ago.  Andrew Bailey has decided it is politically useful for him to aid and abet Project Veritas’ attempt to put crosshairs on abortion providers, despite the history of those metaphorical crosshairs becoming deadly literal. 

Mr. Bailey, you are endorsing violence, and I’m begging you to stop.

(Astrid Riecken/Getty Images).

“We are witnessing a lot of suffering on the hotline,” Linda told me. “People are scared out of their minds.”

Dr. Linda Prine is the co-founder of the Miscarriage and Abortion Hotline. When someone orders pills off the internet because their state has criminalized abortion care or they face other barriers, they can call if they find themselves in need of medical advice.  

You can have a medication abortion so early that the pregnancy can’t yet be located on an ultrasound. When very early, some people describe it as no worse than a menstrual period. But in states like Missouri, abortion seekers are left to the mercy of the mail, often from overseas. When pills arrive later than they are meant to be used, ending a pregnancy can be unnecessarily traumatic. 

“We are getting callers well into the second trimester who are super scared about what is happening to them. The experience is different later, with heavier bleeding and cramping and more doses of medication needed and with the passage of a recognizable fetus,” Linda explained.

This is the everyday cruelty of Missouri’s criminal abortion ban. Our legislators are not interested in fixing its dangerous ambiguities, let alone adopting policy more in line with the preferences of a majority of voters.

So Missourians will have to do what Missourians do when our representatives refuse to enact policy with bipartisan support: Put it on the ballot.

The backers of the effort to legalize abortion in Missouri have submitted 11 different versions of a ballot proposal (each only a page long, you can read them here). All would amend our constitution to protect the fundamental right to reproductive freedom, including decision making regarding “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.” 

Most of the proposals would prohibit abortion bans either before fetal viability (which was the law under Roe and Casey) or before 24 weeks, as well as where the pregnancy endangers the patient’s health or if the pregnancy isn’t actually viable.

Quibbling and polling about at which point in pregnancy abortion should be illegal is an American pastime. This is bizarre and unfortunate because in a rational legal regime, a person who does not want to be pregnant would have access to an abortion tomorrow, while those who do want to be pregnant but have complications would have as much time as they want to decide what to do.

Some abortion rights advocates have suggested that any ballot initiative that would permit the legislature to ban abortion after viability isn’t acceptable. I’m in full agreement that gestational cutoffs are unnecessary and harmful (and I have personal experience with that harm). 

However, the situation in Missouri is intolerable. Any of the proposals would alleviate the suffering of the bulk of Missourians who currently have to either leave the state, self-manage or carry to term against their will. It would also eliminate the dangerous interference in care for patients who are miscarrying that the ban has caused.

And the proposed initiatives would not merely return Missouri to the pre-Dobbs era, in which our legislature was able to make it extremely difficult to get an abortion through unnecessary and burdensome regulations aimed at making it impossible for clinics to operate (aka “targeted regulation of abortion providers” or “TRAP laws.”)

Instead, it would make regulations that interfere with or delay reproductive health care presumptively invalid. For an abortion regulation to survive court review, the government would have the burden of proving the regulation is narrowly tailored to serve the compelling interest of protecting patient health consistent with evidence-based medicine. 

In other words, it would be much easier to get TRAP laws with bogus health justifications struck down (I’ve explained this in more detail here).

All 11 versions of the ballot initiative would also prohibit prosecuting or penalizing someone based on their actual or alleged pregnancy outcomes, including miscarriage, stillbirth or abortion. Even when abortion was a right under Roe/Casey, women, especially women of color, were criminalized for their pregnancy outcomes. 

The proposed initiatives would protect people who lose pregnancies and people who self-manage their abortions targeted by creative prosecutors or abusive partners. 

And each would invalidate criminal and other penalties for abortion providers, allowing them to err on the side of reducing medical risk rather than legal risk even when providing post-viability care. Missourians would be protected from efforts we’ve seen by lawmakers to make it illegal to provide abortion doula services, drive someone out of state to get an abortion, host a website that explains how to get an abortion, or transport abortion medication.

The situation in Missouri is dire and likely to get worse. As more states pass near or total bans, wait times out-of-state will increase even more than they already have, forcing patients to have even later abortions or miss the gestational cutoffs in Illinois and Kansas.

Worse, the workarounds in place to help people leave the state for abortion can’t be relied on. Texas’s Attorney General managed to keep the state’s abortion funds from operating for nine months before being stopped by a court. Our Attorney General Andrew Bailey also has a propensity for harassment without legal authority: he’s made threats in the abortion context and just spent months terrorizing trans people with no basis in law. 

The 2024 ballot initiative can’t stanch the bleeding immediately, but will likely deter officials who would otherwise be inclined to do more harm, given their open fear that voters will upend Missouri’s anti-abortion landscape if given the chance.  

The clock is ticking. Secretary of State Jay Ashcroft successfully ran out the clock so signatures couldn’t be collected to reverse the ban when it first passed. This time, Attorney General Andrew Bailey has joined Ashcroft’s voter-blocking effort. Legislators’ attempt to amend the initiative petition process to keep voters from protecting abortion stalled out this session, but there’s no reason to think they won’t get it done next time.

We have a fleeting opportunity to impose a new legal regime that would foster the broad access to reproductive health care Missourians deserve. 

Imagine if, instead of the luckiest managing to get abortions after having to stay pregnant for weeks and drive out of state, anyone could get an abortion from their primary care physician or nurse practitioner as soon as they miss their period. Imagine if our constitution treated us as fully human bearers of rights to bodily integrity and self-determination. 

A better world is possible. Let’s go.

Missouri Attorney General Andrew Bailey speaks Jan. 20, 2023, to the Missouri chapter of the Federalist Society on the Missouri House of Representatives dais (Annelise Hanshaw/Missouri Independent).

In 2015, Robert Dear shot three people to death and injured nine others at a Colorado Planned Parenthood. When he was arrested after a five hour stand-off he told police: “no more baby parts.” 

The gunman was repeating a lie that presidential candidates and politicians had taken mainstream after an anti-abortion group released doctored videos of Planned Parenthood employees discussing the donation of fetal tissue for medical research. 

Numerous state and congressional committees found Planned Parenthood did nothing wrong, but the damage was done. The organization lost funding to provide contraception in a number of states, potentially lifesaving medical research was halted, doctors were defamed and threatened, and three people lost their lives.

When “selling baby parts” first went viral, it seemed inevitable to me that someone was going to get hurt.

That fear hit me once again when I heard Missouri Attorney General Andrew Bailey refer to clinics providing care to transgender people as “a bloody scourge intended to defile innocents.” 

Bailey has said parents consenting to treatment for transgender children are engaged in “child abuse,” claimed Missouri has “a shadowy clandestine network” of clinics engaging in “science projects, experimentation on children masquerading as medicine.”

Bailey tweeted a Newmax article that praised him for stopping “concentration camp medicine on children” and accused St. Louis Children’s Hospital of “figuratively strip-mining emotionally damaged and immature children for the benefit of doctors and the hospital.” 

And Bailey has repeatedly engaged in the “baby parts” incitement of our day with allegations of “child mutilation.”

Missouri AG doesn’t want the public to know he’s pushing wild legal theories in abortion cases

You may not have heard this language from Bailey if you get your news from mainstream sources. That is because he largely saves this messaging for right-wing shows while lying to general audiences about his legal attacks on transgender care using a more moderate tone.

Bailey has promulgated an emergency rule restricting transgender care that he claims–in some forums–is not intended to deprive transgender people of medical care, but merely to implement “commonsense guidelines” and ensure “informed consent.” In a recent op-ed in the St. Louis Post-Dispatch, for example, Bailey writes: “I introduced a regulation to ensure that patients are informed of the science and are guaranteed access to adequate mental health care, such as talk therapy.”  

Bailey’s rule does nothing to guarantee access to mental health care. What it does is impose arbitrary and burdensome requirements that would keep transgender people in the state from receiving medical care. This is an overregulation strategy pioneered by abortion opponents to deprive patients of abortion providers when Roe prohibited outright bans.  

Bailey wants to minimize what he is doing for the readers of the Post-Dispatch, but when he went on the anti-LGBTQ Family Research Center’s “Washington Watch with Tony Perkins” he proudly accepted credit for having “issued emergency regulations this afternoon that, in effect, will end transgender intervention procedures for minors.” (Bailey often pretends his rule applies only to minors, but it plainly applies to transgender adults, as he and his spokesperson have admitted.) Similarly, when asked by Fox News “Why are you putting an end to these procedures in the state of Missouri?” Bailey did not dispute that this is in fact what he is attempting to do.

Bailey is also misleading the public about “the science,” but I will not dwell on that here both because that has been well-explained elsewhere and because I am not among the exploding population of armchair endocrinologists, expert in transgender medicine despite lacking any medical background or patient experience. 

Less discussed is how and why Bailey is misleading the public about his authority under Missouri law. Bailey’s attempt to use the Missouri Merchandising Practices Act to turn himself into a one-man legislature has made his oft-repeated slogan “enforcing the law as written” truly farcical. 

What Bailey admits is an “innovative approach” is not likely to fly in court, as even vociferously ant-trans Missouri Republicans like Secretary of State Jay Ashcroft and Sen. Mike Moon have acknowledged.

I expect Bailey knows his emergency rule will not likely survive court review as well.  

So why do it? Because a loss in court will not erase the many weeks he has enjoyed presenting himself as the defender of children “mutilated” by their evil parents and doctors, repeatedly congratulating himself on far-right shows for “leading the nation on these issues” and inviting other Attorneys General to emulate his “first in the nation” innovative lawlessness.

By the time a court explains to Bailey that he is Missouri’s Attorney General rather than its king, many people will have come to believe that a state attorney general has the power to single-handedly ban gender affirming or other care. And because what people think the law is can matter as much as what it actually is, this will embolden those who want to harm transgender people and exacerbate fear among transgender people that they can be stripped of their rights and healthcare at any time.  

Bailey doesn’t need his rule to ever go into effect in order to create fear and confusion that is useful to him. Transgender people and their families are already leaving the state.  

Bailey appears to believe animosity towards transgender people and their families and medical providers is useful to him politically, and a court loss is more likely to add gasoline to that fire than dampen it. 

But this is not a game.  

Missouri is a state awash in guns, where police believe they have no power in the absence of a red flag law to take weapons away from people known to be violent and unstable. A Missouri man who had marinated in right-wing vitriol for years just shot a Black teenager who mistakenly knocked on his door. 

Missourians need to hear our Attorney General’s villification of parents who “consent to permanent gender mutilation,” and the “woke left” that “does not care about the health and safety of people because they don’t value human lives” before the next Robert Dear does.

Shoddy lawyering is bad, but dehumanizing your fellow Missourians invites much worse.

Andrew Bailey was announced as Gov. Mike Parson's choice to be Missouri attorney general on Nov. 23, 2022 (photo courtesy of Missouri Governor's Office).

In a press release and tweets announcing his amicus brief in a Texas abortion case, Missouri Attorney General Andrew Bailey describes a relatively limited objection to a recent FDA policy change, which allows for medication abortion to be dispensed at pharmacies. 

After summarizing the brief’s claims that medication abortion is unsafe, the press release states: “The brief concludes with asking the court to grant a preliminary injunction halting the FDA’s new rule.” 

This is false. 

The brief contains no such request, but instead joins the plaintiffs’ request for an unprecedented and sweeping injunction aimed at banning the most common form of abortion everywhere in the United States. 

Bailey has made something of a slogan of “enforcing the laws as written,” but this is only one of a litany of instances in which he has made novel and extremist arguments in legal documents aimed at restricting abortion outside Missouri — and then mischaracterized those arguments to the public.

The new FDA rule that Bailey falsely claims is the subject of his brief does little more than bring medication abortion more in line with standard medical practice, in which a doctor typically writes you a prescription rather than handing you pills. Still, the objection to the new rule may seem reasonable to people unfamiliar with the safety of abortion provided via prescription or telemedicine. But this is not a moderate attempt to maintain the status quo.

Biden administration appeals judge’s ruling ordering abortion pill off U.S. market

Bailey is actually arguing that a handpicked anti-abortion judge in Texas can and should order the FDA to reverse its 23-year-old approval of mifepristone, which is used with misoprostol to essentially induce a miscarriage in early pregnancy. Even conservative legal scholars have explained that the case should not go forward because the anti-abortion plaintiffs lack standing to sue, their claims are past the statute of limitations, and they have failed to identify what provision of the relevant law they are alleging the FDA has violated. 

Were this effort to succeed anyway, it could upend our system of drug regulation and threaten the availability of any medicine or vaccine targeted by activists.

Despite all that, Bailey argues mifepristone should be taken off the market because medication abortion is six times more likely to result in complications than aspiration abortion, and therefore has no therapeutic benefit. This is an odd argument given that performing an aspiration abortion is also a crime in Missouri, and a misleading one because six times the extremely low rate of complications associated with aspiration is still very low. 

The 2015 study that Bailey cites found 0.87% of women who had aspiration abortions and 5.2% of those who had medication abortions experienced complications, “the vast majority of which were minor and expected.” The most common complication of medication abortion is incomplete abortion, which can be treated with more misoprostol or aspiration. 

Bailey also takes a quote from the study out of context to claim complication rates are underestimated, when the authors actually wrote that their study was designed to avoid that possibility, and that 5.2% may be an overestimate due to the characteristics of the patients studied and because symptoms that would resolve on their own like bleeding and cramping sometimes result in treatment for complications. 

The study also notes the complication rate is much lower than for childbirth.

The marginal difference in complication rates is irrelevant because the existence of a different, more invasive procedure that isn’t an option until later in pregnancy is not a reason for the FDA to fail to do its job of approving medications that are safe and effective, which mifepristone proved to be in the four years it took the FDA to grant approval and the decades since. 

Bailey’s brief identifies doctors who once provided abortions in Missouri by name, mischaracterizes their testimony in past litigation, and falsely accuses them of lawbreaking and malpractice. On the basis of these attacks, he argues the complication rate must be vastly higher than any study has ever shown. He argues FDA policy “threatens to permanently sever women from the physician relationships that are critical to properly resolve complications that inevitably occur.” But in Missouri, that relationship is severed by state law.

Though the policy of Missouri is not to ensure a patient receives optimal abortion care, but to force her to remain pregnant unwillingly, Bailey’s brief is a throwback to the pre-Dobbs era, in which anti-abortion politicians claimed they were not trying to deprive women of abortion, just trying to improve the standard of care. 

However, if Bailey and the plaintiffs are able to make mifepristone unavailable, providers of medication abortion may have to abandon the exhaustively studied gold standard of the mifepristone/misoprostol regimen for misoprostol-only abortions — which are safe, but associated with more cramping, nausea and incomplete abortions.

Where providers switch to providing only procedural abortion, patients will be forced to have a more invasive abortion at a later point in pregnancy because wait times for appointments will increase more than they already have at clinics inundated with out-of-state patients since the fall of Roe. 

Additionally, more patients who would have sought care out of state will resort to ordering gray-market abortion pills from the internet to end their pregnancies. 

Fortunately, Bailey’s predecessor and Gov. Mike Parson (during Bailey’s tenure as his General Counsel) have indicated Missouri law exempts women who self-manage their abortions, and legal and medical hotlines are available to assist those who choose to do so. But for a person who would prefer to see a local medical provider or even one in a neighboring state, it is an indignity to be deprived of care. Bailey’s logic-defying argument that an injunction against mifepristone would promote a higher standard of care for abortion patients is ill-informed or, more likely, disingenuous.

The brief also endorses an even more outlandish new legal argument that Bailey has fleshed out a bit more in letters threatening pharmacy chains not to stock abortion pills even where abortion is legal, which he sent on behalf of 21 Republican Attorneys General. Bailey claims that the Comstock Act — an 1873 anti-vice law that hasn’t been enforced in over a century, but once outlawed the mailing of things like information about contraception — currently makes it illegal to mail or ship anything that can be used in an abortion. 

Bailey writes in the letters: “The text could not be clearer: ‘every article or thing designed, adapted, or intended for producing abortion … shall not be conveyed in the mails.’” 

The missing words behind the ellipsis are “or for any indecent or immoral use,” perhaps omitted because the idea that shipping something “immoral” is currently a federal crime punishable by up to five years in prison would tell the reader something about the soundness of his argument.

Even when contraception was generally illegal, courts interpreted the Comstock Act not to prohibit the mailing of items intended for legal uses. The Department of Justice has released a legal opinion that explains this in detail and advises that the Comstock Act could only be applied (if ever) where the shipper intends for an item to be used for an illegal abortion. A shipper will seldom know whether mifepristone is intended for illegal use because there are legal uses for it in even the most abortion-restrictive states. For example, some states allow victims of rape to have abortions or allow abortion before six weeks gestation. All allow abortion when necessary to save the life of the patient. Mifepristone is also used to treat miscarriages and Cushing’s disease.

Bailey’s letter mocks the DOJ’s conclusion that a drug with legal uses can be shipped and received, but is opaque about how far his Comstock Act theory goes. He does not merely say pharmacies may not mail mifepristone to patients. He tells the pharmacies that no one may “obtain” or “send and receive” abortion pills. Because abortion pills have to be mailed or shipped via common carrier to get to any abortion clinic or medical office, this amounts to a claim that, under current law, mifepristone cannot be legally provided anywhere in the country. 

Furthermore, Bailey refers to “abortion pills” rather than mifepristone. So he appears to be suggesting it is also illegal to transport the ulcer medication misoprostol, which can be used without mifepristone for both medication abortion and miscarriage treatment. And while Bailey’s letter focuses on abortion pills, other proponents of this theory contend that because the Comstock Act prohibits transporting any “article or thing” used for abortion, procedural abortion also cannot be provided legally anywhere in the U.S.

One would expect Comstock prosecutions to be brought by federal law enforcement rather than a state AG. This is presumably why Bailey makes a legally dubious threat that his fellow state AGs or private parties could prosecute instead by somehow using anti-racketeering or state deceptive trade practices laws. 

In the absence of a more plausible state law hook, Bailey invents a kind of mini-Comstock Act with this mischaracterization: “In Missouri, for example, it is unlawful to distribute an abortion drug through the mail.” 

What the law he cites actually did, back when abortion was legal in Missouri, was require abortion providers to dispense mifepristone to patients in-office. It was never the case that abortion providers had to obtain mifepristone at the factory where it was manufactured because it was illegal to receive it via mail or FedEx.

Bailey’s letters do hint at the somewhat more realistic threat that a future Republican president’s Attorney General would adopt the currently “off-the-wall” Comstock Act theory being pushed by ultra-conservative legal innovators and prosecute companies or individuals who transported mifepristone during the Biden administration.

Despite Bailey’s maximalist stance, much of the media coverage of his letters has misunderstood him to be merely telling pharmacies they may not mail abortion pills to patients. Bailey’s public statements appear to deliberately invite this misunderstanding.

A final example of Bailey’s lack of candor about his audacious legal arguments are his press release and tweets announcing an “Amicus Brief to Block the VA from Providing Taxpayer-Funded Abortions.” Conveniently omitted from these statements is the fact that the Veterans Affairs Administration may only provide abortion care to a veteran or their family member when the patient is a victim of rape or incest or when her life or health is at stake. 

Despite the limitations of federal preemption and intergovernmental immunity law, signers of the brief have threatened to prosecute doctors who provide abortions at VA facilities to servicemembers who are pregnant as a result of rape.

Ultimately, the fact that Bailey and his fellow abortion opponents have to resort to using the force of law at all stems from their utter failure to make the case to women that ending a pregnancy is immoral. The pioneering legal gymnastics reflect a fear that they cannot make the case to voters either. This is of a piece with efforts to block Missourians from decriminalizing abortion via referendum or ballot initiative.  

Bailey’s inventive legal interpretations and unwillingness to describe them frankly suggest he knows his constituents don’t want what he does. We’ll find out any day now if Bailey can get a judge in Texas to impose his will instead.