---
title: "Republicans’ Cynical Ploy to Keep Abortion Off the Ballot"
source: "https://aninjusticemag.com/republicans-cynical-ploy-to-keep-abortion-off-the-ballot-07a6fc61ac55"
author:
  - "[[Dustin Arand]]"
published: 2024-09-13
created: 2024-10-29
description: "After the Supreme Court overturned Roe v. Wade, Republicans in my home state of Missouri moved swiftly to ban abortion. Under current state law, all abortions are prohibited — even in cases of rape…"
tags:
  - "clippings"
---
## Afraid of their own voters, conservatives have gone to court to thwart them

[

![Dustin Arand](https://miro.medium.com/v2/resize:fill:88:88/0*hTr5hI2IKzfR4MwD.)

](https://dustinarand.medium.com/?source=post_page---byline--07a6fc61ac55--------------------------------)

[

![An Injustice!](https://miro.medium.com/v2/resize:fill:48:48/1*suDnvWWEvtqQCxA2NEHoRA.png)

](https://aninjusticemag.com/?source=post_page---byline--07a6fc61ac55--------------------------------)

![](https://miro.medium.com/v2/resize:fit:700/0*Z0FHf7MtE49a0mft)

Photo by [Harrison Mitchell](https://unsplash.com/@harrisonmitchell?utm_source=medium&utm_medium=referral) on [Unsplash](https://unsplash.com/?utm_source=medium&utm_medium=referral)

After the Supreme Court overturned *Roe v. Wade*, Republicans in my home state of Missouri moved swiftly to ban abortion. Under current state law, all abortions are prohibited — even in cases of rape or incest — unless necessary to protect the life or health of the mother.

Even in this deep red state, a state that hasn’t supported a Democrat for president since Bill Clinton in 1996, the total abortion ban didn’t sit well with voters. Almost immediately, abortion rights activists began organizing petition drives to enshrine the right to reproductive freedom in the state constitution.

Here in Missouri, to put a constitutional amendment on the ballot, proponents have to secure the signature of eight percent of eligible voters. That’s a heavy lift. But in this case, a coalition of activist groups called Missourians for Constitutional Freedom managed to get nearly [18 percent](https://missouriindependent.com/2024/05/03/missourians-signatures-abortion-amendment-viability/) of voters to sign on. And according to the [most recent poll](https://www.kcur.org/politics-elections-and-government/2024-08-30/missouri-abortin-rights-amendment-3-support-poll), 52 percent of Missouri voters planned to support it, including 32 percent of registered Republicans.

It looked like Missouri was about to become yet another conservative state — like Ohio, Kentucky, and Kansas — whose citizens would either recognize the right to abortion or reject efforts to curtail it, in defiance of state Republican lawmakers. But all that was thrown into confusion Friday night, when Judge Chris Limbaugh (cousin of Rush Limbaugh) ruled that the language of the proposed amendment — now called Amendment 3 — failed to include “all sections of existing law or of the constitution which would be repealed by the measure.”

Since Tuesday was the deadline for getting language on the November ballot, an emergency petition bypassed the State Court of Appeals and went straight to the Missouri Supreme Court, which heard arguments first thing Tuesday morning.

## Show Me Democracy

While the ballot proposal’s opponents may not have much of an argument — I’ll explain why shortly — it was entirely predictable that they would try to get it de-certified. It was also easy to foresee that conservative judges and Missouri’s Republican Attorney General would do whatever they could to take this choice away from the voters.

That’s because Missourians have a long history of going around Republican lawmakers. They increased the minimum wage, embraced Obamacare’s Medicaid expansion, legalized recreational marijuana, and rejected anti-union “Right to Work” legislation. The state’s GOP leaders have never forgiven them.

You see, up until fairly recently, Missouri was more of a swing state. With the exception of 1956, when Missourians supported Democrat Adlai Stevenson over Republican Dwight Eisenhower, the Show Me State has voted for the winner of the Presidential election every year from 1904 through 2004.

In 2008, McCain just barely edged out Obama. Back then Missouri had one Democratic and one Republican Senator. Our Secretary of State was a Democrat, and Democrat Jay Nixon won his race for governor. Since then, though, it’s been harder and harder for Democrats to win statewide office. At the same time, ==Republicans in control of the state legislature have gerrymandered themselves an essentially veto-proof majority.==

That’s why the ballot initiative process has been so crucial for my state. Without it, we’d have no way to escape one-party rule. The culture wars and right-wing disinformation have made the Democratic brand toxic to many voters in red states, but those same voters often lean left on concrete matters of policy. By framing a single question and putting it directly to the voters, we can put aside partisan politics and just focus on the facts of this one issue.

For that very reason, ballot initiatives pose a far greater political threat to the Republican agenda than any Democratic candidate. And that’s why the GOP has been so keen to quash them. Earlier this year, Republicans in Jefferson City tried to pass a bill that would have asked voters to change the amendment process. Instead of a simple majority, the Republicans’ proposal would have required that any new amendment be approved by a majority of voters from a majority of the state’s legislative districts (called a “concurrent majority”).

Essentially, the GOP was trying to Electoral College-ify the amendment process. And since the state legislature was so heavily gerrymandered, a [study](https://missouriindependent.com/2024/02/05/as-few-as-1-in-5-voters-could-defeat-initiative-petitions-under-missouri-senate-proposal/) found that if their proposal became law, an amendment could fail to pass *even if it got 75 percent of the vote*.

And Missouri isn’t the only state where Republicans have taken aim at the ballot initiative process. This [report](https://www.brennancenter.org/our-work/research-reports/politicians-take-aim-ballot-initiatives) from the Brennan Center describes similar efforts in Arizona, Arkansas, Idaho, Michigan, North Dakota, and Ohio. Whether by requiring a “concurrent majority” for passage, or increasing the number of signatures needed to put an amendment on the ballot, or both, Republicans in these and other states are engaged in a direct attack on popular sovereignty, and on the last credible challenge to their power.

## The fate of Amendment 3

Back in Missouri, our Supreme Court had to decide what to do with the challenge to Amendment 3. In theory, it makes sense that ballot initiatives should list any laws or constitutional provisions they will repeal. Voters deserve to know what they’re voting for, and many may not be inclined to sign a petition for an initiative that would repeal laws they support.

But in practice, it’s not so easy to apply. For example, a decade ago a group of teachers sued to block a ballot proposal affecting teacher contracts because they said that, in addition to amending Article IX of the state constitution, it would also amend the general right to collective bargaining in Article I. Since this wasn’t disclosed in the proposal’s language, it had to be de-certified.

But the Missouri Court of Appeals disagreed. In [*Kuehner et al v. Kander*](https://www.courtlistener.com/opinion/2734290/anita-marie-kuehner-v-jason-kander/?type=o&q=%22full+and+correct+text%22+AND+initiative&order_by=score+desc&stat_Precedential=on&court=mo+moctapp+moag), 442 S.W.3d 224, the court held that the law

> does not require initiative proponents to include all of those provisions affected, impacted, or modified by a proposed measure. Moreover, requiring proponents to ferret out all such potential conflicts would tend to stifle the initiative process.

That’s sensible. After all, whether a specific law runs afoul of a general constitutional guarantee is a question of interpretation. Under our system of checks and balances, that makes it an issue for courts to decide, not activists and not the Attorney General (a member of the executive branch).

Think about it: when Congress passes a law, or the people of a given state pass a constitutional amendment that impacts Federal rights, they all tend to think their actions are constitutional. But that doesn’t make them so, and we don’t just take their word for it. If someone challenges the law or amendment it will always be up to a court to say who’s right.

An initiative’s supporters may underestimate its impact on current or future laws, or they may overestimate it. Cases that present such questions have to be decided when they arise, by judges whose job it is to clarify the contours of the law.

We saw this play out in [Florida](https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida) after that state’s voters elected to reinstate former felons’ voting rights upon completing their sentences. Republican lawmakers immediately passed a law prohibiting ex-felons from exercising their rights if they hadn’t paid back all residual financial obligations stemming from their incarceration. Governor Ron DeSantis claimed this was consistent with the amendment approved by voters because paying off those debts was part of what it meant to “complete one’s sentence.” Most voters may have been surprised to hear it, but the courts agreed.

Similarly, if Missourians vote to support the right to reproductive freedom, don’t expect that to be the end of the story. Access to abortion may technically be protected up to the point of fetal viability, but that won’t stop Republicans from trying to throw up all kinds of roadblocks to the operation of abortion clinics in the state.

That includes things like requiring that providers have admitting privileges at local hospitals, or that clinics meet the requirements for ambulatory surgical centers, even when no surgical abortions are performed on site. It’s the same playbook we’ve seen for decades, and future courts will have to determine whether these or other measures significantly impede Missourians’ ability to exercise their reproductive rights.

At 3 o’clock on Tuesday afternoon the Missouri Supreme Court rendered its decision. The amendment language was proper, they said, and they ordered the Attorney General to immediately place it back on the ballot. This November, Missourians will get to have their say on abortion, as will voters in Arizona, Colorado, Florida, Maryland, Montana, Nevada and South Dakota.

But we almost didn’t, and we can’t forget that fact. If you live in a red state, know that your local Republican Party is almost certainly trying to take away your voice, to destroy direct democracy. Don’t let them do it. It’s up to all of us to stay informed of our rights, of developments in the law, and of the questions we will be expected to weigh in on. That is the price and the privilege of citizenship.