In deep red Kansas voters rejected a constitutional amendment that would have removed from the constitution of Kansas a provision that protected woman’s reproductive rights by 59 to 41 percent. Nate Cohen, chief political analyst for the New York Times, wrote that the United States Supreme Courts decision overturning Roe v. Wade “has shifted the political landscape.” Voters in Kansas showed up in record numbers at the August 2022 primary to the tune of over 900,000 voters, setting a new record turnout for a primary election vote by hundreds of thousands of voters.
Cohen than goes on to predict that: “The Kansas vote implies that around 65 percent of voters nationwide would reject a similar initiative to roll back abortion rights, including in more than 40 of the 50 states…” Cohen further predicts that Missouri would reject a similar amendment to the Kansas proposal by fifty seven percent. Remember, the Kansas proposal would have removed from the Kansas constitution protections for reproductive rights. Obviously, Cohen’s conclusions are a very big deal, but only time will tell if his predictions are accurate.
Missouri has one of the strictest abortion laws in the country, which was triggered when the United States Supreme Court overruled Roe v. Wade. Missouri law provides “…no abortion shall be performed or induced upon a woman, except in cases of medical emergency.” There are no exceptions for rape or incest. Violation of the law is a felony, which is punishable by up to 15 years in jail. The defendant has the burden of persuasion to show that a medical emergency is more probably true than not. Missouri does not recognize the right to an abortion in its constitution; therefore, the door to a court interpretation that reproductive rights are protected by the Missouri constitution is closed.
All this is downright scary. If you believe women should have control over their bodies, the question is what to do. With Republicans having a veto proof majority in its legislature the chances of remedial legislation in Missouri are next to zero. Congress, with an evenly split Senate, is also unlikely to act by codifying Roe v. Wade, even though there are bipartisan efforts to codify Roe v. Wade protections, these efforts are doomed by the 60-vote requirement in the Senate. What are the options to protect abortion rights?
Fortunately, there is a lot of election activity on the abortion rights front in other states, which may give us some clues. There will be a vote to amend state constitutions in four states relating to abortion rights on the primary election date, which November 8, 2022. California, Vermont and Michigan proposes to amend its constitution to protect women’s reproductive rights. In Kentucky a vote is scheduled to amend its constitution to prohibit abortion. Montana has a vote on a referendum of a law that makes infants born alive at any stage of development a legal person requiring medical care to be provided to infants born alive after an induced labor, cesarean section, or attempted abortion.
It is clear that if reproductive rights of women are to be protected in Missouri, it will take a constitutional amendment like California, Vermont or Michigan.
I will be waiting on pins and needles until after November 8th to sort this out, but if Nate Cohn’s predictions are true there will be a lot of interest in a constitutional amendment in Missouri. Still, even after we know the results of the elections in November it will take a sophisticated analysis to determine how this might play out in Missouri, due to so many variables. Each state is different, so translation of results from one state to another will not be easy. Stay tuned.
Howard Wright © 2022
Missouri Public Policy and Law 