The Missouri Supreme Court heard arguments Tuesday morning over whether to allow an abortion-rights amendment to remain on the Nov. 5 ballot. 

The court will decide whether the campaign behind Amendment 3, which would legalize abortion up until the point of fetal viability and protect other reproductive rights, failed to comply with state law when drafting its initiative petition, the text circulated among registered voters. 

They are expected to rule quickly, since the deadline to remove a question from the ballot is 5 p.m. 

A group of anti-abortion lawmakers and activists filed a lawsuit late last month asking the court to take the measure off the ballot, saying the initiative petition failed to list what specific existing laws would be repealed if the amendment passed. 

Missouri law requires that initiative petitions “include all sections of existing law or of the constitution which would be repealed by the measure.” 

Hours after a bench trial in circuit court on Friday, Cole County Circuit Judge Christopher Limbaugh ruled in favor of the plaintiffs, recommending that the measure be taken off the ballot because the citizen-led ballot measure failed to meet the sufficiency requirement through a “failure to include any statute or provision that will be repealed, especially when many of these statutes are apparent.” But he left the ultimate authority up to a higher court.

In their briefing to the Supreme Court, the attorneys representing the anti-abortion group wrote that no comparable case has been brought before the court in the past. 

“That is because proposed Amendment 3 is novel in its attempt to attach unlimited other subjects to a single, enormous issue that is so controversial that it eclipses all others in the minds of voters, the media and even the secretary of state,” they wrote. 

Chuck Hatfield, an attorney representing Missourians for Constitutional Freedom, the campaign behind the amendment, argued to the Supreme Court Tuesday that the opposition’s briefs were “light on legal arguments but weighty with political argument.”

He chalked the lawsuit — filed by state Sen. Mary Elizabeth Coleman, state Rep. Hannah Kelly, anti-abortion activist Kathy Forck and shelter operator Marguerite Forrest — up to politics. 

“The fact that [abortion] is controversial does not mean that the courts and state officials should cast aside the fundamental right to have that vote,” he said. 

He maintained that because the amendment would not literally repeal any part of the law on its own, the campaign did not err. He added that constitutional amendments never repeal state statutes from the books. Instead, courts can render other statues invalid as a result of further legal action. 

Mary Catherine Martin, an attorney with the Thomas More Society arguing the case Tuesday on behalf of the plaintiffs, reiterated her contention that the initiative petition illegally included more than one subject, pointing to language protecting “a person’s fundamental right to reproductive freedom” and saying such a phrase encompasses “infinite subjects.” 

Attorneys for Missourians for Constitutional Freedom said the single subject is “reproductive freedom.” 

While Limbaugh did not rule on this single subject claim, the Supreme Court has the opportunity to.

After the hearing, both sides agreed on one point: the case is novel. 

Martin called the amendment novel in all that it encompasses.

Tori Schafer, an attorney with the ACLU of Missouri, which is part of the coalition behind the amendment, said the same of the plaintiffs’ procedural arguments.

Schafer said while an amendment hasn’t been ordered off the Missouri ballot in several decades, Limbaugh’s ruling “threatens to grind our system of constitutional initiative petition to a halt at the last minute, leaving in its wake the disenfranchisement of hundreds of thousands of voters …”

Martin said they are not trying to “undermine” voters, but rather “protect” them.

“We’ve worked for 50 years for the right to vote on abortion and I would desperately like, along with all Missouri voters, the opportunity to actually do so,” she said. “And not to have to vote on all of these issues at the same time.”

Amendment 3 would establish the constitutional right to an abortion up until fetal viability and grant constitutional protections to other reproductive health care, including in-vitro fertilization and birth control. It would also protect those who assist in an abortion from prosecution. 

Abortion is illegal in Missouri, with limited exceptions for medical emergencies.

Since the Supreme Court decision in June 2022 through March 2024, there were 64 abortions performed in Missouri under the state’s emergency exemption, according to data from the Missouri Department of Health and Senior Services. 

Meanwhile, thousands of Missourians have crossed state lines for the procedure. Last year, about 2,860 Missourians traveled to Kansas and 8,710 traveled to Illinois for abortions, according to the Guttmacher Institute, a reproductive rights research group that closely tracks abortion data.

Ashcroft decertifies measure ahead of ruling

On the eve of the Supreme Court hearing, Missouri Secretary of State Jay Ashcroft decertified the ballot measure, a potentially unprecedented attempt to rescind his previous decision in an attempt to block the measure from the ballot.

As of Tuesday morning, Amendment 3 remained absent from the secretary of state’s website listing measures to appear on the November ballot.

Ashcroft said he’d mistakenly certified Amendment 3. 

Attorneys representing Ashcroft in Cole County Court on Friday defended his decision. But on Monday, they said he’d realized his error

“This court should simply dismiss this appeal because the appeal has now become moot,” an attorney for Ashcroft told the Supreme Court on Tuesday, adding that Ashcroft believes he has the authority to decertify any measure up until eight weeks before the election.

Judge calls Ashcroft’s characterization of abortion amendment ‘unfair’ and ‘misleading’

Attorneys for the Missourians for Constitutional Freedom in a filing Monday evening asked that Ashcroft be held in contempt of court, adding that his decision went against the court’s stay order filed Monday morning that kept the amendment on the ballot until the highest court’s decision was made.

Hatfield told the judges Tuesday that his team filed a motion asking the court to stay the lower court’s order and keep the amendment on the ballot until they made a decision because “the secretary of state is going to be up to shenanigans and we need a stay” to prevent a “crisis in the system.”  

He recognized the contempt request was “highly unusual” and put the court in a “predicament.”

“It’s open contempt for your authority, It’s open contempt for the rule of law,” Hatfield said of Ashcroft. “It’s open contempt for the proper administration of justice to tell the public that he’s going to take it off the ballot even though we’re here this morning having this discussion.”