Supporters of Amendment 3 celebrate on Sept. 10 on the steps of the Missouri Capitol after the state Supreme Court ruled the abortion-rights measure could remain on the ballot (Anna Spoerre/Missouri Independent).
You don’t argue one thing in a lawsuit and the opposite thing in a different lawsuit.
It undermines the integrity of the judicial system. And it’s unfair.
And yet, as I predicted, Attorney General Andrew Bailey has completely flip flopped on his interpretation of Amendment 3 — the ballot initiative that Missouri voters just approved to make legal abortion available in this state.
The Amendment 3 campaign had to sue the state twice over inflammatory ballot language that claimed it would mean abortion would be completely unregulated in Missouri.
In the first lawsuit (there were five lawsuits over Amendment 3, I’m only going to deal with two of them here), the state defended a flagrantly inaccurate ballot summary from Secretary of State Jay Ashcroft that claimed the ballot initiative would result in: “unregulated, and unrestricted abortions until live birth, without requiring a medical license or potentially being subject to malpractice.”
In the second (after the court had said the ballot summary challenged in lawsuit #1 was inaccurate and unfair), the state defended “fair ballot language” that claimed the amendment:
“will prohibit any regulation of abortion, including regulations designed to protect women undergoing abortions and prohibit any civil or criminal recourse against anyone who performs an abortion and hurts or kills the pregnant women.”
That sounds very bad. Also definitive. But Bailey and company never believed any of it.
After emphatically claiming to the public and the courts that Amendment 3 would prohibit any regulation of abortion, the state is now arguing that it can continue to regulate abortion care out of existence.
When abortion was still recognized as a right under the U.S. Constitution, abortion opponents were extremely successful at over regulating to make it impossible to actually get an abortion. These laws, known as “targeted regulation of abortion providers,” or “TRAP laws,” left Missouri with only one abortion clinic and resulted in a drop in the number of abortions provided from over 9,000 in 2016 to 150 in 2021.
The TRAP strategy entails imposing regulations that can look reasonable to the uninitiated but are medically inappropriate and designed to be impossible to comply with so clinics can’t operate.
An example of a classic TRAP law: Missouri requires that an abortion provider obtain admitting privileges at a hospital within 30 miles.
At many hospitals, the criteria for getting admitting privileges involve the number of patients a doctor admits in a year. But abortion patients almost never have to be admitted to a hospital.
Hospitals can give privileges to anyone they want for credentialing reasons, but they are loath to do that for abortion providers who are unlikely to admit patients and very likely to bring political heat.
Missouri and other anti-abortion states claim that requiring admitting privileges furthers continuity of care because the same doctor who provided one’s abortion should treat any complications. That claim is contrary to modern medical practice in which someone admitted to a hospital is typically cared for by a doctor specializing in hospital care (a “hospitalist”) rather than an outpatient provider.
Also, many patients have to travel long distances to reach an abortion provider. In the small percentage of cases where they have complications, the nearest hospital is not likely to be the one where their provider has privileges.
And the most common complication is “incomplete abortion” following a medication abortion, which requires the same treatment as an incomplete miscarriage. This is treatment any emergency room should be able to provide, in most cases without needing to admit the patient.
The “continuity of care” claim is particularly absurd and offensive coming from Missouri officials who have fought to force women to travel out of state for care.
The admitting privileges requirement is but one of the medically unjustifiable regulations that the officials who claimed Amendment 3 meant abortion would be completely unregulated are now claiming can survive court review.
In the previous lawsuits, the state based its argument that abortion would be completely unregulated on the fact that “Amendment 3 would go beyond the abortion rights recognized in Roe” because abortion restrictions would need to survive “ultrastrict” scrutiny.
The state was correct about Amendment 3 going beyond Roe. Amendment 3 does impose a new ultrastrict standard of review — because it was designed to invalidate TRAP laws.
This standard is indeed stricter than Roe’s “strict scrutiny” standard or Planned Parenthood v. Casey’s “undue burden” standard. Even under the weaker undue burden standard, the U.S. Supreme Court struck down admitting privileges requirements in two states, but only after years of litigation in which the clinics facing closure had the burden of proving the requirement had no medical benefit and unduly burdened women abortion seekers.
Amendment 3 puts the burden on the state to prove that a regulation actually protects patient health and is consistent with standard medical care. That’s a burden the state can’t meet given that the many laws purportedly intended to make abortion safe don’t apply to miscarriage care, which entails the same medications and procedures as abortion.
Now, however, the state is arguing that all the amendment did was reinstate the Roe/Casey standard so all of the TRAP laws that made abortion unavailable in Missouri before Dobbs should be upheld.
The state makes additional arguments that are incompatible with its previous position that abortion would be totally unregulated, going so far as to argue that abortion providers don’t even have standing to sue to invalidate Missouri’s TRAP laws.
There is a legal doctrine that is meant to prevent litigants from taking inconsistent positions in court called “judicial estoppel.” The court can “estop” a litigant from making the inconsistent argument. That should happen here.
As the Missouri Supreme Court has explained, “Judicial estoppel is invoked to protect the dignity of the judicial proceedings and to prevent parties from playing fast and loose with the judicial process by taking inconsistent positions in two different proceedings.”
It isn’t fair for proponents of a ballot initiative to have to bring multiple lawsuits to combat a legal position the state doesn’t actually hold. Estoppel could deter similar bad behavior the next time state officials want to use antidemocratic means to thwart an initiative petition.
Our officials owe us and the courts accurate information. Advocates on opposing sides of an issue owe each other basic candor as well.
When I asked anti-abortion leader Sam Lee whether he would stand by his claims about Amendment 3 if it became law, he said he couldn’t say. It was clear throughout the election that the people spreading outlandish disinformation about Amendment 3 wouldn’t actually interpret it to protect even limited access to abortion.
Fair play and a discourse based on facts are essential to maintaining democracy and the rule of law. Those who sought to deny that to us should be held accountable by the courts and the public.