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This week, Missouri Secretary of State Jay Ashcroft is expected to certify Missourians for Constitutional Freedom’s proposed amendment to the Missouri Constitution. If approved by voters in November, this would enshrine a “right to reproductive freedom” in the Missouri Constitution.
As a high school social studies teacher in St. Louis, this raises fascinating issues of law and policy that are as relevant to my advanced placement U.S. government and politics students, as they are to Missourians generally. It is important to appreciate the historical context for the initiative.
My students and I have discussed how the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization held that the U.S. Constitution is agnostic on the question of abortion, which is to say that it is silent on whether there is a right to abortion or, for that matter, a right to life of the unborn.
As such, and by virtue of the principles of federalism set forth in the 10th Amendment that regulate the relationship between the states and the federal government, it is up to the states to regulate abortion.
The Missouri General Assembly passed a statute, the Right to Life of the Unborn Child Act, which protects the right to life of the unborn, with exception in cases of medical emergency. While the law imposes criminal and civil penalties upon anyone who knowingly performs or induces a prohibited abortion, it protects pregnant women (upon whom an abortion is performed or induced) from liability.
Voters will likely decide in a matter of months whether to maintain Missouri’s statutory protection of the unborn or, in the words of the proposed amendment, prohibit the state from “deny(ing) or infring(ing) upon a person’s fundamental right to reproductive freedom.”
Missourians should consider maintaining the status quo, which protects the right to life of the unborn while upholding the dignity of women, and vote against the proposed amendment, for a number of reasons.
As I teach my students, legal language can take on a life of its own. Judges can broadly or narrowly interpret the law according to their policy preferences, and our system of government prohibits the political branches of government from interfering with the judicial function. As Alexander Hamilton wrote in Federalist No. 78, a text that my students study, interpreting the law is the “proper and peculiar province of the courts.”
How might all of this play out if the proposed amendment were adopted and our elected officials sought to regulate abortion?
Virtually any state law that would regulate abortion would likely be held unconstitutional. The proposed amendment would make it nearly impossible to pass commonsense, consensus abortion regulation. This is because any law that would, in the words of the proposed amendment, infringe upon a woman’s “autonomous decision-making” (among other hurdles) would be struck down.
In effect, this could mean that Missouri courts would prohibit our duly-elected legislators from adopting heartbeat protection bills, pain-capable limits or even parental consent laws for minors in future.
And even after what the proposed amendment terms “fetal viability,” the state could “under no circumstances” undermine access to abortion if “in the good faith judgment of a treating health care professional (it) is needed to protect the life or physical or mental health of the pregnant person.” Given the malleability of language, a creative judge could quite plausibly find abortion during all nine months of pregnancy to be constitutionally protected.
Finally, and as a more general matter, is constitutional change really the best approach to “settling” the question of abortion in Missouri? It is not at all clear that it is.
Adopting a constitutional amendment takes legislative power away from elected officials, who are accountable to the people and tasked with policymaking. Constitutional change should be difficult. This is why the U.S. Constitution requires three-fourths of states to approve proposed amendments.
Unfortunately, in Missouri, only a bare majority is required to amend the Missouri Constitution, and to tie the hands of legislators.
Civic-minded Missourians should engage with the political process in November at the ballot box. And, on the proposed abortion amendment, as with everything else, inform themselves accordingly.
Robert P. Barnidge Jr. teaches high school social studies in St. Louis.
