JEFFERSON CITY, Mo. — Reproductive rights activists in Missouri agree they want to get a ballot measure before voters this fall to roll back one of the strictest abortion bans in the country and ensure access. The sticking point is how far they should go.
The groups have been at odds over whether to include a provision that would allow the state to regulate abortions after the fetus is viable, a concession that supporters of the language say will be needed to persuade voters in the conservative state.
It’s a divide that’s not limited to Missouri.
Advocates say the disagreements there and in other states where activists are planning abortion-rights measures this year have resurfaced long-brewing ruptures among reproductive rights advocates. The divisions are most acute in Republican-leaning or closely divided states, where some worry that failing to include limits related to viability will sink the measures.
The conflict has been especially sharp in Missouri, where dueling strategies have complicated efforts to push ahead with a ballot measure seeking to reinstate the right to abortion.
“The movement is grappling with its value system,” said Bonyen Lee-Gilmore, the Kansas City-based vice president of communications for the National Institute for Reproductive Health, which opposes viability clauses.
Viability is used by health care providers to describe whether a pregnancy is expected to continue developing normally or whether a fetus might survive outside the uterus. It’s generally considered to be around 23 or 24 weeks into pregnancy but has shifted downward with medical advances. The American College of Obstetricians and Gynecologists opposes viability language in legislation or regulations.
Some say it creates an arbitrary dividing line and stigmatizes abortions later in pregnancy, which are usually the result of serious complications, such as fetal anomalies, that put the life of the woman or fetus at risk.
‘Roe is the floor, not the ceiling’
The Supreme Court’s 1973 Roe v. Wade decision established a constitutional right to abortion but also created a framework that allowed states to regulate abortions at certain points during pregnancy. Since the current court overturned it in 2022, “Roe is the floor, not the ceiling” has become a rallying cry for activists who vowed to rebuild access, especially for marginalized communities, according to Pamela Merritt, executive director of Medical Students for Choice, a group that opposes viability clauses.
Yet measures proposed for this year’s ballot in Missouri, Florida and Arizona have been replicating Roe’s viability framework, as did an Ohio constitutional amendment guaranteeing the right to abortion that passed last year.
Shortly after that election, a Black Ohio woman who miscarried in her bathroom was charged with abuse of a corpse. The amendment’s viability clause was cited as justification for allowing the case to move forward, though a grand jury ultimately dismissed the case.
The charges are part of a larger effort by anti-abortion forces in Ohio to use the viability clause to limit the reach of the amendment, said Merritt. Many of these efforts will wind up in Ohio’s largely conservative court system, she added.
In South Dakota, the local Planned Parenthood affiliate has pulled out of ballot measure efforts for a proposal that allows lawmakers to restrict abortion after the first trimester. The group said the proposal fails to protect abortion rights.
In Oklahoma, viability has been central to conversations about a potential ballot measure to repeal the state’s abortion ban, said Rebecca Tong, co-executive director of Trust Women, which provides abortion care. Tong said viability is “not something we want written into the Constitution in Oklahoma.”
But Lauren Brenzel, campaign director for Floridians Protecting Freedom, said viability has not been a major focus in conversations around ballot measure language in a state that could soon ban the procedure after six weeks of pregnancy if the Florida Supreme Court upholds a previously passed 15-week ban. The campaign recently reached the necessary number of verified signatures to qualify an abortion-rights measure for this year’s ballot that includes a viability clause.
“Viability is the framework that Florida had used until the legislators started passing abortion bans,” Brenzel said. “What we know is that voters understand this, and we see it as clear and concise language that matches with what the standard was in Florida for a long time.”
Viability language in Florida’s proposed measure has already opened the door to a legal challenge from the state’s Republican attorney general, who has asked the state Supreme Court to keep the measure off the ballot because of vagueness over the meaning of the term.
A few states, including California and Vermont, have enshrined abortion rights into their constitutions without viability limits. Proposed amendments in Maryland and New York also don’t mention viability.
Missouri has found itself in the center of the national debate over the issue as abortion-rights groups have split over which of 11 versions of a measure to support for the ballot. The petitions have been tied up in court for months after being challenged by Republican Secretary of State Jay Ashcroft.
Complicating the effort is an initiative petition proposed by Republican strategist Jamie Corley. It would allow abortions up to 12 weeks into pregnancy and include exceptions for rape, incest or to protect the life of the mother until viability.
Corley said those restrictions are what’s feasible to pass in Missouri, where Republicans banned abortions except in medical emergencies.
“Pro-life, anti-abortion voters, a lot of them are still OK with legal but limited access,” Corley said.
