JEFFERSON CITY — The Missouri Supreme Court has scheduled oral arguments for 8:30 a.m. Tuesday in a monumental case that will determine whether voters will weigh in on the state’s abortion ban this year.
A quick decision is expected as the high court works against a 5 p.m. Tuesday deadline for the secretary of state to finalize ballots for the Nov. 5 election.
The last-minute legal spectacle is unfolding after a decision late Friday by Cole County Circuit Judge Christopher Limbaugh threw the measure’s survival into question.
Complicating matters on Monday: Secretary of State Jay Ashcroft said in a letter that he had reversed his previous decision to place the measure on the Nov. 5 ballot following Limbaugh’s decision.
Jesus Osete, who had previously served as general counsel to Ashcroft, said on social media site X, formerly Twitter, that the “threshold question” Tuesday “will be whether this action moots the appeal, in which case the case is over and the measure will not be on the ballot.”
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Amendment 3, the Missouri abortion-rights measure, has drawn national attention as voters here could be among the first to reverse a state’s near-complete abortion ban in the wake of Roe v. Wade’s reversal.
Limbaugh’s decision Friday angered Democrats, who have aligned themselves closely with the abortion-rights campaign.
On Monday morning, St. Louis Mayor Tishaura O. Jones, St. Louis County Executive Sam Page, Kansas City Mayor Quinton Lucas and Columbia Mayor Barbara Buffaloe filed a brief with the state Supreme Court urging them to reverse the Friday ruling.
“It would be a mistake to take away at the last minute the voters’ opportunity to weigh in on a duly certified measure,” the local leaders said. “In an era of public mistrust of government, judicial branch invalidation of citizen efforts threatens to reinforce a myth that Missouri’s government does not listen to its people.”
Limbaugh ruled the pro-abortion rights question should be removed from the ballot because proponents excluded information from the amendment about which laws would be repealed if voters approve the measure, in violation of state law.
Limbaugh, in his decision, sided with four plaintiffs who challenged Ashcroft’s Aug. 13 certification of Amendment 3 for the Nov. 5 ballot.
Retired physician Dr. Anna Fitz-James and the campaign Missourians for Constitutional Freedom intervened in the case, arguing against the lawsuit.
Ashcroft’s office also defended the question’s place on the ballot. Assistant Attorney General Andrew Crane on Friday told Limbaugh the secretary believed the question met the minimum requirements for placement on the ballot.
After Ashcroft reversed himself Monday, attorneys for Fitz-James and Missourians for Constitutional Freedom asked the court to hold the secretary of state in contempt for violating its stay and order him to “rescind his contumacious letter.”
Missouri courts historically have been averse to removing initiative petitions from the ballot that have been certified by the secretary of state.
Operating under the nonpartisan court plan, Missouri’s seven-member Supreme Court is made up of five Republican appointees and two Democratic appointees.
Gov. Mike Parson, a Republican who signed the state’s abortion ban into law in 2019, appointed three of the current judges.
Parson couldn’t pick anyone he wanted for the posts. Under the adopted by voters in 1940, the Appellate Judicial Commission selects three finalists from whom the governor will make a choice.
Members of the commission include three elected by the Missouri Bar, three gubernatorial appointees and the chief justice of the Missouri Supreme Court.
Last year, after Parson’s appointment of Judge Kelly Broniec to the bench, women made up a majority of the high court for the first time.
Parson also appointed Limbaugh to the bench in Cole County as an associate circuit judge and announced Limbaugh’s promotion to circuit judge last month.
In Limbaugh’s Friday ruling, he cited a state law requiring campaigns to attach the full text of a proposal to an initiative petition and that the text include “all sections of existing law or of the constitution which would be repealed by the measure.”
While lawyers for Amendment 3 said courts would determine which laws are eventually repealed, Limbaugh said the campaign “purposefully decided not to include even the most basic of statutes” that the amendment would repeal, at least in part.
He went on to compare the state’s current abortion ban to language in the amendment guaranteeing abortion rights and current criminal punishment for performing or inducing abortions to the amendment’s provision giving legal protection to people receiving abortions or assisting in an abortion.
“The defendant-intervenor Fitz-James’ failure to include any statute or provision that will be repealed, especially when many of these statutes are apparent, is in blatant violation of the sufficiency requirements under” Missouri law, Limbaugh said.
In a motion filed with the Supreme Court to stay Limbaugh’s ruling, attorney Chuck Hatfield for the appellants argued passage of Amendment 3 wouldn’t immediately result in the repeal of any law, saying the statute will remain in effect until a court adjudicates the future dispute.
Even if a court does overturn a law, it won’t be “repealed,” Hatfield said. The law would remain on the books but wouldn’t have any effect, he said.
“The Trial Court conflated the term repeal with the concept of nullification,” the brief said.
The attorneys asked the court to stay the previous ruling, which would still allow the anti-abortion plaintiffs to continue their legal challenge, they said.
“Hundreds of thousands of people signed a petition to place Amendment 3 on the November general election ballot,” the appellants’ brief said. “The public would experience substantial harm if a vote was prohibited from taking place.”
In a brief for abortion opponents, Mary Catherine Martin of the conservative Thomas More Society said the public interest “overwhelmingly opposes” staying Limbaugh’s decision.
Issuing a stay would keep the question before voters and sow confusion, the brief said.
The other side’s approach, Martin said, “virtually guarantees massive public confusion — and attendant anger — as voters would cast votes on a plainly insufficient, erroneously included initiative petition.
“The public interest strongly favors a swift decision on the merits, before the ballots are finalized,” she said.
Those wishing to listen to oral arguments live Tuesday morning can do so by visiting the Supreme Court’s .