No, Missouri’s abortion rights referendum will not block malpractice lawsuits, retired judge says

JEFFERSON CITY, Mo. (KFVS) – As Missouri voters are likely on track to vote on a constitutional amendment to enshrine the right to abortion, the state’s leading anti-abortion organization, Missouri Right to Life, has made claims about the resolution’s impact which legal experts refute as “untrue.”

The referendum would re-establish an individual’s right to receive abortion care up to a certain point. It also, ”require[s] the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care.”

This part of the amendment, Missouri Right to Life President Susan Klein said, would effectively block any lawsuit against an abortion provider for malpractice or negligence.

“It basically takes away the right to sue an abortionist, the right to sue a human trafficker, the right to sue the perpetrator of incest,” Klein said.

Former Missouri Supreme Court chief judge Mike Wolff said these claims are all based on extremely loose, and wildly exaggerated legal opinions with no basis in actual law.

“It would have no effect whatsoever,” Wolff said. “We would essentially be back to where we were with Roe versus Wade. If there was a malpractice committed in the course of giving medical care of any kind, Roe versus Wade did not protect the doctor or the hospital or anybody else from liability in a malpractice action.”

As for Klein’s claims about human trafficking and incest, Wolff said there’s absolutely nothing in the amendment that would affect how those crimes are prosecuted in the state of Missouri.

“There’s nothing in here that makes what is criminal behavior, rape, incest, that kind of thing, to be protected in any way,” Wolff said. “There’s nothing in here about that.”

A key section of the referendum says that any restrictions on abortion will be “presumed invalid” unless a court can prove they are medically necessary for safety.

“This is like turning the presumption of innocence in criminal cases into a presumption of guilt until proven innocent,” Missouri Right to Life attorney James Coles said in a legal analysis. “It represents another new barrier to defending the validity of abortion statutes in the courts.”

On this one, Wolff agrees, given that’s precisely the point of the initiative: to establish that abortion is not a crime and that it should be the state’s burden to prove the necessity of a restriction.

“So, if the legislature tries to impose additional restraints on this, [it would] have to show that they’re necessary to protect a person’s safety and some of the examples that you can come up with would just be absurdly unrelated to patient safety.”

The Missouri Secretary of State’s office has until August 13 to determine whether enough valid signatures were collected to put this, and other questions, on the November 5 ballot.

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