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Opinion: General Assembly: Don’t Lower the Bridge with Poorly Timed IP Reform

The two most important things for lawmakers to understand about Amendment 3 are (1) that it is a constitutional “Death Star”, taking out everything—past, present, and future—that falls within its reach, and (2) that its reach is vast: much greater, for example, than the footprint of that 50-year waking nightmare for our country, Roe v. Wade.

To be specific, our new right is the broadest to be adopted anywhere in the United States, giving every Missourian, even our children, a right to anything even “relating to reproductive health care,” including things that have yet to be developed. (Roe v. Wade, by comparison, gave women only a right to abortion only.) 

What makes it a Death Star is that Amendment 3 also makes our new right our highest ever right, by applying a novel standard of “super-strict scrutiny” to any laws that might limit it. The Death Star of “super-strict scrutiny” will neutralize any law that protects anyone but the person seeking a “matter relating to reproductive health care,” as well as any laws that limit anyone’s “autonomous decisionmaking.” This is where Amendment 3 makes illegal the God-given limit on every child’s “autonomous decisionmaking”: her parents. (To continue our handy comparison, “super-strict scrutiny” humiliates Roe v. Wade, which protected abortion rights with at most only the “strict scrutiny” test that the law still finds to be good enough for our other previously supreme rights like free exercise of religion, speech, and assembly.)

Here in Missouri, the A3 Death Star started sending out laser beams of “super-strict scrutiny” on the day it became effective, when Planned Parenthood sued to have most of our past and current abortion restrictions neutralized. The Court has already suspended many of the challenged laws based on its prediction that they will not survive “super-strict scrutiny.” The now-suspended laws were all protective of women and babies, including even our law that protects babies from being targeted for abortion because they are the wrong color, the wrong sex, or disabled. The goal of Amendment 3’s Death Star is that Missouri’s lawmakers and parents may not protect anyone from anything that is even “relating to reproductive health care.”

 There is a single respect in which Amendment 3 could be easier on Missouri than Roe v. Wade was: it should be easier to undo. Since the federal right to abortion was a paper tiger, conceived only in the mind of the highest court in the land, it was impossible to revise, limit, or qualify for anyone except the 7 justices who dreamed it up and their successors. Amendment 3, by contrast, is a readable part of our Constitution, which is amendable in ways set forth in our laws. Specifically, the effects of Amendment 3, a constitutional amendment, can be reversed or limited, but only by operation of later-in-time constitutional amendments. 

Republicans in the State of Missouri are familiar with this procedure from recent history, when an Initiative Petition called “Clean Missouri” included provisions that were not actually supported by the will of the people, like Amendment 3. Clean Missouri was quickly substantially revised by a ballot initiative called “Cleaner Missouri” that originated in the legislature and allowed the people to vote to further amend the Constitution in importantly qualifying ways. The key thing to remember about Cleaner Missouri is that it came in the same door that Clean Missouri had used . . . via a vote by the people.  

Partly because of the Amendment 3 travesty, much has been made of Missouri’s indisputable need for “Initiative Petition Reform,” to include preeminently a raising of the criteria for passing a law or amendment by initiative. No matter how much Missouri needs IP reform to protect our Constitution from seizure by foreign interests who spend several fortunes to deceive us into voting for monstrosities like Amendment 3, now that Amendment 3 has passed and taken our state prisoner, we must temporarily hit “Pause.” The solution to the problem of Amendment 3 lies only in further constitutional amendment, so making amendments harder to come by at this point is the worst thing we could do. 

After conducting two pre-election lawsuits to enforce Missouri’s initiative petition laws against the drafters of Amendment 3, I can tell you that there are plenty of aspects of our initiative petition process that are worthy of reform. (The first thing I would do is change the law that allows a court to write ballot language.) But I implore the General Assembly to not yet raise the bar on the number or distribution of votes necessary for the people to adopt a new, restorative constitutional amendment, whether by initiative petition or ballot initiative. 

We’ve all seen the movie chase scene where a boat slides under a bridge as its lowering, and the good guys are screaming at the bridge operator to reverse the bridge so that the police boat trailing the bad guys doesn’t get cut off. Anyone who makes it harder at this moment in Missouri’s history to amend our Constitution is that drawbridge operator with his headphones in who allows the bad guys to slip away. 

General Assembly, take your headphones out and hear Missouri yelling! Do not lower the bridge of IP reform before we catch Amendment 3.