Missouri’s 12-week abortion petition is no middle ground. Don’t sign away your rights | Opinion

Earlier this month, Americans saw an unusually public example of how exceptions to abortion bans work in practice. After Kate Cox learned that her baby had a fatal fetal abnormality and continuing the pregnancy would put her health and fertility at risk, she sued Texas to have an abortion.

The Texas Supreme Court said no. It ruled that Cox’s doctor’s attestation that she qualified for the health exception — in the doctor’s good faith judgment — was insufficient to allow her to end her doomed pregnancy. So her choices were to carry a baby she knew would not live to term, or to seek care out of state.

Cox’s case turned on the seemingly pedantic, but legally significant difference between a law that requires a patient’s health to be at risk according to “reasonable medical judgment” versus the “good faith judgment” of one’s treating doctor.

The “reasonable medical judgment” standard is a recipe for patients in dire situations being denied abortion. It leaves a doctor exposed to second-guessing after the fact by a prosecutor, expert witness or licensing authority. This would not be the case if the determination was in the “good faith judgment” of Cox’s doctor.

In short, the words in a law matter. Which brings us to Missouri.

Jamie Corley, a self-described Republican operative and founder of the Missouri Women and Family Research Fund, is promoting an amendment to the state constitution that she claims would “enshrine access to abortion in the first 12 weeks of pregnancy with extended exceptions for rape, incest, fatal fetal abnormalities and if the pregnancy threatens the health and safety of the woman.”

It’s unlikely her amendment would accomplish any of this. Let’s start with what it would do for a Missourian in Kate Cox’s situation.

Under Corley’s amendment, Cox would have a right to an abortion until 12 weeks gestation, at least on paper. But she didn’t learn of her baby’s condition until later than that, so she’d need to qualify for either Corley’s “health and safety” or “fatal abnormality” exception.

There’s little reason to think either would help.

Corley has claimed her amendment would leave doctors to determine if a patient’s health is sufficiently endangered or an abnormality is fatal, but this is glaringly absent from the text.

Corley has said that Missouri’s “very ambiguous medical emergency clause” — which is nearly identical to Texas’ — ”really endangers women’s lives.” But ambiguity isn’t the problem. There is no way to write a law that accounts for all the things that can go wrong in a pregnancy. Even to protect only the patients Corley finds deserving, doctors must be able to use their judgment without fear of legal repercussions. This is why the amendments adopted in Ohio and Michigan, and those proposed in our state by Missourians for Constitutional Freedom, explicitly protect the judgment of the physician.

Rape victims required to contact hotline

The larger problem is Corley’s failure to protect the judgment of the pregnant woman, instead doling out unworkable “exceptions” such as those for victims of rape. She has repeatedly said things that are not true about her rape exception, which reads:

“In the event of a rape or sexual assault, no abortion shall be performed unless the alleged rape or sexual assault has been reported to a rape or sexual assault crisis hotline.”

Corley told The Missouri Independent that all a survivor would need to do is call or text the hotline of her choosing, “I am a survivor of sexual assault.” Reports would be totally confidential, and even anonymous.

This is an audacious and offensive fairy tale. The current policy of the Missouri legislature is that if you become pregnant after being raped, you cannot have an abortion. It is not reasonable to suggest that our legislators would implement the honor system that Corley has dreamed up, but included nowhere in her amendment.

But even in that fairy tale, Corley’s claim that all reports would be confidential is false. If a 17-year-old tells her abortion provider that she was raped, Missouri law requires the provider to report it to the state in compliance with the mandated reporter law. Perhaps Corley believes that it is good policy to require any minor who becomes pregnant after being raped to have to involve the state in order to end the pregnancy, but that is the opposite of what she’s claimed publicly.

Corley next told The Kansas City Star that her amendment would “stav(e) off any attempts by the Missouri legislature to add a police reporting requirement.” This is not true. Her amendment does not say a rape victim who reports to a hotline has a right to an abortion. It says a rape victim cannot have an abortion unless she has reported to a hotline. It does not restrict the legislature from imposing additional requirements. The legislature could require anything: a rape kit, a protective order or an agreement to press charges and testify against one’s rapist. Also false is Corley’s claim that her amendment bars the legislature from requiring a police report or worse.

Picking a number of weeks out of the air for when abortion should be legal doesn’t make any sense, because those who do not want to be pregnant prefer to end their pregnancies as early as possible. Women with wanted pregnancies should have whatever time they need to decide what to do about complications. Since the fall of Roe v. Wade, people throughout the country are having later abortions because many have to travel, and appointment wait times have lengthened at inundated clinics.

The way to have earlier abortions is to make early abortion widely available, which Corley’s amendment is unlikely to do. She and her attorney, Chuck Hatfield, apparently did not consult with any potential abortion providers or their legal counsel about whether her amendment would provide enough legal protection for abortion providers. And her amendment has an odd provision that appears to protect Missouri’s Roe-era burdensome and medically inappropriate regulations, which made it nearly impossible to get an abortion here even when Roe was still the law.

I don’t know whether Corley’s proposal is the result of shoddy legal work that doesn’t accomplish what she says she wants it to, whether it does what she intended but she’s describing it dishonestly, or whether she’s indifferent to how her amendment would work and whether what she says about it is true.

What I do know is that her effort is deceptive. If she begins a signature campaign to get it on the ballot, some signers might think it’s safe to continue voting for anti-choice politicians because she has offered a path to liberalizing Missouri’s extremist abortion laws. In very important ways, she has not. Supporters of reproductive rights should not sign on.