Disputes over viability are dividing abortion-rights groups and complicating ballot measure efforts

JEFFERSON CITY, Mo. — Reproductive rights activists in Missouri agree they want to get a ballot measure before voters this fall to reverse one of the strictest abortion bans in the country and guarantee access. The sticking point is how far to go.

The groups disagree over whether to include a provision that would allow the state to regulate abortions after the fetus is viable, a concession that proponents of the language say will be necessary to sway voters in the conservative state .

It’s a divide 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-standing rifts among reproductive rights advocates. The divisions are most acute in Republican-leaning or deeply divided states, where some worry that not including limits on viability will cause the measures to fail.

The conflict has been especially fierce in Missouri, where dueling strategies have complicated efforts to move forward with a ballot measure seeking to restore abortion rights.

“The movement is struggling 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 generally used to refer to the stage, usually around 23 or 24 weeks of pregnancy, during which a fetus could survive outside the womb. But medical experts say it creates an arbitrary dividing line and stigmatizes abortions later in pregnancy, which are extremely rare and usually result from serious complications, such as fetal abnormalities, that endanger the life of the woman or fetus.

Pamela Merritt, executive director of Medical Students for Choice, which opposes viability clauses, calls it “a social construct, an arbitrary line in the sand.” It is not a medical term, and we must move away from perpetuating these harmful terms that revive a legacy of Roe that we do not need to revive.”

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 times during pregnancy. Since the current court struck it down in 2022, “Roe is the floor, not the ceiling” became a rallying cry for activists vowing to rebuild access, especially for marginalized communities, Merritt said.

Still, measures proposed before this year’s elections in Missouri, Florida and Arizona have adopted Roe’s viability framework, as has an Ohio constitutional amendment guaranteeing the right to abortion last year.

Shortly after that election, a Black Ohio woman who suffered a miscarriage 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, although a grand jury ultimately dismissed the case.

Merritt said the charges are part of a larger effort by anti-abortion forces in Ohio to use the viability clause to limit the scope of the amendment. Many of these efforts will end up in Ohio’s largely conservative legal system, she added.

“When you hand them the scalpel, you can’t turn around and be surprised when they start cutting,” she said.

In South Dakota, the local Planned Parenthood affiliate has withdrawn from voting on a proposal that would allow lawmakers to restrict abortions after the first trimester. In a statement, the group said the proposal fails to protect abortion rights.

In Oklahoma, viability has been at the center of conversations about a possible ballot measure to repeal the state’s abortion ban, said Rebecca Tong, co-executive director of Trust Women, which provides abortion care and advocates for reproductive rights. Tong said viability “is not something we want written into the Oklahoma Constitution.”

But Lauren Brenzel, campaign director for Floridians Protecting Freedom, said viability has not been a major focus in conversations about ballot language in a state that currently bans the procedure after six weeks of pregnancy. The campaign recently reached the necessary number of verified signatures to qualify a measure promoting abortion rights for this year’s ballot, which includes a viability clause.

“Viability is the framework Florida used until lawmakers started passing abortion bans,” Brenzel said. “What we know is that voters understand this, and we see it as clear and concise language that is consistent with what has long been the norm in Florida.”

Language about the feasibility of 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 about the meaning of the term.

A few states, including California and Vermont, have written into their constitutions the right to abortion without viability restrictions. Proposed amendments in Maryland and New York also make no mention of viability.

In Colorado, activists are collecting signatures for a measure that would overturn the state’s ban on Medicaid funding for abortions. Karen Middleton, president of the Colorado abortion rights group Cobalt, said the state has never placed pregnancy or viability restrictions on abortion care and “the evidence is that they are not necessary.”

Missouri is at the center of the national viability debate as abortion rights groups divide over which of 11 versions of a measure the ballot should support. Some allow a ban on abortion after viability.

The petitions have been stuck in court for months after being challenged by Republican Secretary of State Jay Ashcroft.

Complicating the effort is another initiative petition — one 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 mother’s life until she is viable.

Corley said these restrictions are feasible in Missouri, where Republicans have banned abortions except for medical emergencies.

“Pro-life, anti-abortion voters, many of them still agree with legal but limited access,” Corley said. “They’re not going to vote to codify Roe, but they’re okay with 12 weeks. And they’re certainly OK with it if the alternative is a ban on the books, with no exceptions for rape and incest.”

Some reproductive rights groups advocating versions of a more permissive ballot measure with a viability clause expressed concern that anti-abortion forces would attack proposals without one, saying it was an attempt to legalize abortion “up to birth” or “abortion at request’. terms considered misleading by medical experts.

Sarah Standiford, national campaigns director for the Planned Parenthood Action Fund, said states must strike a balance between policies that include the “most meaningful access” but can also “pass regulatory scrutiny and the voter qualification process.”

She acknowledged that such an approach “may ultimately promote policies that are far from the ideal.”

Other activists say they are increasingly frustrated by compromises they say are based on fear and repeating past mistakes in Roe v. Wade, which prevented access to abortion for the most vulnerable, including people with pregnancies with higher at risk, low-income people, people of color. and people living in rural communities.

They also worry that the vague term “viability” could be manipulated by anti-abortion forces to further restrict abortion rights.

“It’s a restriction under the guise of reproductive freedom,” said Jennifer Villavicencio, senior director of public affairs and advocacy at the Society of Family Planning.

“Compromise is never in favor of the marginalized,” she added.

In Missouri, it remains to be seen how or if activists divided over viability will come together. For many, there is a sense of urgency to restore at least some rights.

“There are real lives at stake, and that has to be part of these political considerations,” said Mallory Schwarz, executive director of Abortion Action Missouri. “We need to think about what is politically possible and also look at why that is possible at that moment.”

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Fernando reported from Chicago.

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