On September 1, Missouri Right to Life (“MRTL”) filed a friend-of-the-court brief showing why an initiative to put an abortion right in the state constitution would establish a regime of unrestricted abortion on demand throughout pregnancy until the moment of birth.

The brief was filed in a case challenging the Secretary of State’s Summary Statement for Initiative No. 2024-085. Such summary statements are designed to tell voters what an initiative is about. The Secretary’s Summary said the Initiative would, among other things, “allow for . . . unrestricted abortions, from conception to live birth.” 

Dr. Anna Fitz-James challenged the Summary Statement in Cole County Circuit Court as erroneous. MRTL’s brief showed why “unrestricted” was an accurate description of what the Initiative would do.

In demonstrating why that statement is accurate, MRTL showed the court four key things. First, abortion case law distinguishes the terms “regulation” and “restriction,” with the latter being a prohibition. So the fact that the Initiative speaks of some minimal “regulation” does not authorize any “restriction” on abortion. The Initiative nowhere authorizes a restriction on abortion for any reason or at any time, such as the Supreme Court did in Roe v. Wade, which permitted state to prohibit abortion after the viability of the preborn child. So based on this fact alone the Initiative would allow unrestricted abortion.

Second, MRTL demonstrated from the history of abortion law after Roe v. Wade that abortion providers and advocates have always sought abortion on demand throughout pregnancy, which the U.S. Supreme Court often accommodated by striking down reasonable restrictions on abortion, until the Supreme Court overruled Roe v. Wade in the Dobbs case. Abortion providers and advocates are seeking unrestricted abortion through the current Initiative, because no meaningful regulation will be permitted.

Third, MRTL showed how the specific terms of the Initiative did not allow any restriction on abortion on demand throughout pregnancy. For example, the Initiative would require that after viability an abortion must be allowed if, in the sole discretion of the abortion provider, an abortion is necessary for the pregnant woman’s mental health. But Dr. Jane Hodgson, a famous abortion provider, said that, if a woman seeks an abortion, then the abortion is medically necessary. Accordingly, under the Initiative, abortion after viability is unrestricted.

Fourth, MRTL showed that the foregoing demonstrates the Secretary is correct that the Initiative would “allow for . . . unrestricted abortions, from conception to live birth.” Accordingly, that statement “accurately reflect[s] the legal and probable effects of the proposed initiative,” as required by Missouri Supreme Court case law.

James Bopp, Jr., of The Bopp Law Firm, PC, and counsel for MRTL, says: “The history of abortion jurisprudence since Roe v. Wade shows that abortion is unrestricted if there is a mental-health exception. Since the Initiative provides a mental-health exception, in the sole discretion of the abortion provider, the Initiative would institute a regime of unrestricted abortion on demand throughout pregnancy until the moment of birth.”

Susan Klein, Executive Director of Missouri Right to Life, says: “As we have seen over the many years of Roe, unrestricted abortions have endangered the lives of women and taken the lives of unborn babies. When the abortion provider is given free rein on women with no restrictions or accountability, women will suffer the consequences and have no recourse if this attempt to enshrine abortion in our state constitution were to succeed. Secretary of State Ashcroft’s ballot language is a true depiction of unrestricted abortions for all nine months of pregnancy in these petitions and the people of Missouri have the right to know the truth.”

The brief is available at: https://www.bopplaw.com/wp-content/uploads/2023/09/MoRTL.ACBr-amicus-br-FINAL.pdf.