KANSAS CITY, Mo. — As Missouri abortion rights supporters mounted a campaign to overturn the state’s abortion ban, opponents regularly argued the constitutional amendment would lead to unrestricted abortions.

Now, after voters approved the amendment, called Amendment 3, last month, Republican Attorney General Andrew Bailey says that’s not the case.

While Bailey has acknowledged that the amendment makes the state’s near-total abortion ban unenforceable, he also argues that Amendment 3 does not impact a slew of restrictions on abortion providers that have severely limited access to the procedure.

“Amendment 3 affirmatively protects a woman’s right to choose life for her unborn child,” Bailey wrote in a Nov. 25 court filing, arguing that a web of restrictions on providers should remain intact. Those restrictions include a requirement that women wait 72 hours between seeing a doctor and having an abortion.

Bailey made the argument in a 128-page response to a lawsuit from Missouri’s Planned Parenthood affiliates who are pushing to formally block the abortion ban and restrictions. The filing comes just before a key hearing on Wednesday in which a judge will decide whether to block the restrictions as providers seek to restore access to the procedure as early as this week.

In addition to overturning the ban, the Planned Parenthood affiliates want a judge to block the patchwork of TRAP laws, or “targeted regulation of abortion providers,” that lawmakers have passed over the years.

Those regulations include the 72-hour waiting period as well as a requirement that abortion facilities be licensed as ambulatory surgical centers and another that requires doctors to have admitting privileges at a hospital no more than 15 minutes away.

The cluster of restrictions was a main factor in curtailing abortions and effectively caused the number of abortions in Missouri to drop from 6,163 in 2010 to 150 in 2021 before the ban was enacted.

Bailey, in his response to the lawsuit, said the idea that Amendment 3 struck down those regulations was “nonsensical.” In his argument, Bailey seized on the amendment’s definition of reproductive freedom, which states that it’s a right for a person to make decisions on reproductive health care including “childbirth.”

“Every time a person is given time to choose childbirth, that necessarily ‘delays’ abortion, but that extra time to choose childbirth fosters and facilitates a right to choose childbirth expressly guaranteed by Amendment 3,” Bailey wrote.

Bailey’s legal argument that Amendment 3 protects restrictions on abortion access marks a major departure from Republican arguments against the amendment. Conservative opponents frequently criticized the measure, claiming it would allow for unrestricted abortion access.

Ahead of the Nov. 5 election, Missouri Stands with Women, one of the groups opposing the measure, said the amendment would “reverse Missouri’s pro-life laws and place unregulated, taxpayer-funded abortions up to the birth of a child in our state’s constitution.”

Rep. Maggie Nurrenbern, a Kansas City Democrat who was elected to the state Senate last month, criticized Bailey’s argument, saying that he was “trying to restrict reproductive rights by making dubious claims that directly contradict what his party was saying less than a month ago.”

“Clearly, the same Republican politicians who lied about Amendment 3 during the campaign are now trying a whole new set of tricks to take away Missourian’s constitutional right to reproductive freedom,” Nurrenbern said in a statement. “On the issue of abortion, the voters have spoken and it’s time elected officials moved on to tackling other issues like making childcare more affordable for Missouri parents.”

A spokesperson for Bailey’s office did not immediately respond to a request for comment on Monday.

Bailey weighs in on abortion ban

In addition to his argument about the restrictions, Bailey’s legal filing also weighs in on the state’s near-total abortion ban. The filing references a legal opinion Bailey wrote to Republican Gov.-elect Mike Kehoe acknowledging that the ban would no longer be in effect after Amendment 3 passed.

“The Attorney General thus will cease enforcing these statutes in general circumstances,” Bailey wrote in the opinion, referencing the abortion ban. However, he signaled that his office would continue enforcing the ban after fetal viability, which is allowed under the amendment.

“But Amendment 3 and the U.S. Constitution permit the Attorney General and other officials to continue enforcing these laws after viability (with some exceptions), when there is no parental consent, and when the woman has been unlawfully pressured,” Bailey wrote.

The constitutional amendment, as approved by voters, enshrines the right to an abortion in the state constitution but also gives lawmakers some leeway to regulate the procedure after fetal viability.

It defines fetal viability as the point in a pregnancy when a health care professional decides, based on the facts of the situation, “there is a significant likelihood of the fetus’s sustained survival outside of the uterus without the application of extraordinary medical measures.”

The flurry of legal filings from Bailey’s office comes ahead of a critical Dec. 4 court hearing in Jackson County in which providers are looking to formally block the ban and restrictions. Bailey’s office is also pushing to move the case to Cole County.

The hearing puts providers on a tight timeline. They have said they want the restrictions blocked so clinics in Kansas City, Columbia and St. Louis can begin offering abortions by Dec. 5, when the amendment officially takes effect.

After spending months fighting the amendment, abortion opponents are now rallying against the lawsuit from Planned Parenthood. Several anti-abortion groups and Republican lawmakers are scheduled to hold press conferences on Tuesday in support of Bailey’s defense in Kansas City, St. Louis, Columbia, Springfield and Rolla.

At the same time, fights over abortion rights are likely to consume the upcoming legislative session, which starts next month. Republican lawmakers are expected to file constitutional amendments to undo or weaken, Amendment 3.

The GOP-controlled General Assembly can place amendments on the ballot with a simple majority vote. But any changes to the amendment would have to also be approved by voters.

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The Star’s Jonathan Shorman contributed to this story.

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