Abortion initiative wouldn’t just end the cruelty of Missouri ban. It would be a new world

May 26, 2023 6:15 am
People hold up signs that read "Protect safe, legal abortion."

(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.

The situation in Missouri is dire and likely to get worse.

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.

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

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.

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Bridgette Dunlap
Bridgette Dunlap

Bridgette Dunlap is a lawyer and writer living in St. Louis County. She has written for Rolling Stone, The Atlantic, ReWire, Ms. and Slate. Bridgette wants Missouri to be a great place for her kids, and all kids, to grow up.