JEFFERSON CITY — A Cole County judge said in a ruling late Friday that an omission within the text of an abortion-rights amendment should cost the proposal a spot on the Nov. 5 ballot.
Circuit Judge Christopher Limbaugh ruled that in the full text of Amendment 3, the campaign Missourians for Constitutional Freedom unlawfully excluded mention of laws to be repealed if voters approved the measure.
Limbaugh stopped short of ordering Amendment 3 off the ballot, saying he would wait for another court to review the case.
Proponents are hoping Friday’s ruling is a temporary setback that will be reversed on appeal.
On Saturday morning, lawyers for the campaign filed a notice of appeal with the Missouri Court of Appeals Western District in Kansas City. Added to the case for the appellants were Jefferson City attorneys Chuck Hatfield and Alixandra Cossette.
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Later Saturday, Chief Judge Anthony Rex Gabbert of the Western District signed an order transferring the case to the Missouri Supreme Court. Gabbert noted the constitution gives the state’s highest court “exclusive appellate jurisdiction in all cases involving the validity of a ... statute or provision of the constitution of this state.â€
Missouri courts have “highly disfavored†removing initiative petitions from the ballot after they have been certified by the secretary of state, Cole County Circuit Judge Daniel Green wrote Thursday in an unrelated 12-page ruling on the proposed sports betting amendment.
For abortion opponents, Amendment 3’s removal would be a major win against a better-funded abortion-rights campaign that had spent more than $5 million through June, turned in more than 254,000 verified signatures to make the ballot, and had demonstrated majority support in public polling.
Rachel Sweet, campaign manager for Missourians for Constitutional Freedom, called Limbaugh’s ruling a “profound injustice to the initiative petition process and undermines the rights of the 380,000 Missourians who signed our petition.â€
Sweet said the campaign hoped for a “swift resolution so that Missourians can vote on November 5 to protect reproductive freedom, including access to abortion, birth control and miscarriage care.
“Our fight to ensure that voters — not politicians — have the final say is far from over,†she said in a statement.
The four plaintiffs who challenged Secretary of State Jay Ashcroft’s Aug. 13 certification of the measure called attention to the campaign’s exclusion of information from the petition about laws that would be repealed if it was approved.
A requirement in Missouri law states campaigns must attach the full text of the proposal to the initiative petition, and that the text include “all sections of existing law or of the constitution which would be repealed by the measure.â€
The amendment creates the right to “make and carry out decisions about all matters relating to reproductive health care, including but not limited to†abortion, birth control, prenatal care, childbirth, miscarriage care, postpartum care and respectful birthing conditions.
The four plaintiffs — state Sen. Mary Elizabeth Coleman, activist Kathy Forck, state Rep. Hannah Kelly and Our Lady’s Inn President and CEO Peggy Forrest — said in a statement after the ruling that “Missourians have a constitutional right to know what laws their votes would overturn before deciding to sign initiative petitions.â€
They added that Amendment 3 “isn’t just about abortion.â€
Though not explicitly mentioned in Amendment 3, the plaintiffs used the measure’s broad language to argue it would protect transgender medical treatment for minors, and remove the state’s bans on , and stem cell research.
“Instead of seeking the will of the people about abortion alone, in Amendment 3, Missouri voters will be asked to legalize, protect, and fund abortions within a measure that simultaneously proposes to legalize, protect, and/or fund on different terms an infinite category of ‘all [other] matters relating to reproductive health care,’†the plaintiffs said in their pretrial brief.
After the decision Friday, the plaintiffs said there was no way to know if the campaign would have collected enough signatures “if the truth about the staggering scope of laws Amendment 3 invalidates had been disclosed.â€
But the Missourians for Constitutional Freedom campaign argued its amendment didn’t repeal any laws or constitutional provisions, saying future court decisions would determine which laws are overturned.
Limbaugh rejected the campaign’s argument, saying it holds water with some laws and provisions, but not all of them.
He said a cursory review of abortion laws compared to the ballot language defeated the argument that passage wouldn’t repeal statutes “or that it’s too confusing to determine which statutes would be repealed.â€
As two examples, he compared the state’s current abortion ban to language in the amendment guaranteeing abortion rights, and the state’s current criminal punishment for performing or inducing abortions to the amendment’s provision protecting people receiving abortions or assisting in an abortion from criminal prosecution.
“This opinion does not suggest that every initiative petition should speculate as to every single constitutional provision or statute that it could affect,†Limbaugh said.
But he said the abortion-rights side’s “failure to include any statute or provision that will be repealed, especially when many of these statutes are apparent, is in blatant violation of†state standards, Limbaugh said.
Lawyers for the plaintiffs said previous initiative petition campaigns satisfied the disclosure requirement by including a disclaimer on the initiative petitions.
For example, they cited a 2018 disclaimer for the “Clean Missouri†amendment that mentioned laws that may be repealed if the amendment was approved.
But, Andrew Crane, an assistant attorney general representing Ashcroft’s office, briefly defended the election chief’s certification of Amendment 3 in court on Friday, saying Ashcroft believes it “met the minimum requirements.â€
Limbaugh was the elected prosecuting attorney of Cape Girardeau before becoming the general counsel for Gov. Mike Parson. In 2021, Parson appointed him associate circuit court judge in Cole County; Limbaugh was promoted last month by Parson to circuit court judge.
He’s the son of a federal court judge and a cousin to the late radio talk show host Rush Limbaugh.