Ezel / AG Opinions / MO
MO Opinion No. 168-2019 2019-08-13

Did the Missouri AG approve the ballot summary for Sara Baker's referendum petition seeking to put HB 126 (the 2019 'heartbeat' abortion law) before the voters?

Short answer: Yes, as to legal content and form. AG Schmitt approved (as a re-issued, typo-corrected version) the Secretary of State's summary statement for Sara Baker's petition 2020-R001, a referendum on Senate Substitute for SCS for HB 126 (the 2019 'heartbeat' abortion bill). A referendum petition would have let voters decide whether to keep or reject the law. The AG's review under § 116.334 RSMo is procedural, not a policy endorsement.
Currency note: this opinion is from 2019
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official Missouri Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Missouri attorney for advice on your specific situation.

Plain-English summary

Missouri's General Assembly passed HB 126 in 2019, a multi-tiered abortion restriction. The bill prohibited abortion at eight weeks of gestation (when a heartbeat is typically detectable), with stair-step backstops at fourteen, eighteen, and twenty weeks if the eight-week ban was struck down, plus a separate ban on abortion sought solely on the basis of sex, race, or a Down syndrome screening.

Sara Baker filed referendum petition 2020-R001 to put HB 126 to a popular vote. Under Missouri's referendum mechanism (Mo. Const. art. III, § 49 and § 52(a)), voters can suspend a recently-enacted law from taking effect by gathering signatures, then either approving or rejecting the law at the next election.

Because the original August 12 letter contained a typographical error, AG Schmitt re-issued the opinion the next day. The re-issued letter (this one) supersedes the earlier opinion and approves the legal content and form of the Secretary of State's ballot summary under § 116.334 RSMo. As with all such reviews, this is a procedural legal-form check, not a policy endorsement.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, and later AG opinions have substantially changed the abortion-law landscape, and HB 126's underlying provisions interacted with those changes. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The exact ballot summary the AG approved

Do you want to adopt House Bill 126 passed by the General Assembly in 2019, which specifically amends Missouri law to:

  • provide the unborn child with the same protections as those already born;
  • prohibit abortions at eight weeks of gestation (at which time there is a medically detected heartbeat), except in cases of medical emergency;
  • establish successive times at which abortions are prohibited (fourteen weeks, eighteen weeks, twenty weeks, all with medical emergency exceptions) if earlier time frames are found unlawful; and
  • prohibit an abortion based solely on the sex, race or Down Syndrome screening of the unborn child?

Common questions

Q: What is a referendum petition (and how is it different from an initiative)?
A: A referendum asks voters to keep or reject a law the legislature already passed. An initiative asks voters to enact a law the legislature has not passed. Missouri allows both, and both move through similar AG-review steps under Chapter 116 RSMo. The "R" in petition number 2020-R001 marks it as a referendum.

Q: Why was the opinion re-issued?
A: The original letter, sent August 12, contained a typographical error. The AG withdrew that opinion and replaced it on August 13 with this corrected version, which is the operative one.

Q: What does "yes" mean on a referendum ballot?
A: Under Missouri practice, a "yes" vote on a referendum approves the law (keeps HB 126 in force). A "no" vote rejects the law (repeals it). The summary asks voters whether they want to "adopt" the bill — that is the "yes" framing.

Q: Did the referendum reach the ballot?
A: No. Petitioners did not collect enough signatures within the constitutional 90-day window after the legislative session ended, so HB 126 took effect without a referendum. The bill was then challenged in federal court on substantive grounds. The full subsequent litigation is outside the scope of this opinion.

Q: Who can challenge the summary statement?
A: § 116.190 RSMo lets any registered voter challenge the official ballot summary as "insufficient or unfair" by filing suit in Cole County circuit court within ten days of certification.

Background and statutory framework

Chapter 116 RSMo lays out the petition pipeline. Referendum petitions move through the same AG-review steps as initiatives:

  1. Proponent files the petition with the Secretary of State.
  2. AG reviews sufficiency as to form under § 116.332 RSMo.
  3. State Auditor prepares a fiscal note; AG reviews under § 116.175.4 RSMo.
  4. Secretary of State drafts a summary statement; AG reviews under § 116.334 RSMo (this opinion).
  5. Petition certified for circulation.

Referendum petitions are subject to the additional 90-day signature-gathering window after the legislative session adjourns (Mo. Const. art. III, § 52(b)).

Citations and references

Statutes: § 116.334 RSMo (the operative provision); § 116.190 RSMo (judicial challenges); § 116.175 RSMo (fiscal-note pipeline); § 116.332 RSMo (sufficiency-as-to-form); Mo. Const. art. III, §§ 49, 52(a), 52(b) (referendum power).

Bill text: Senate Substitute for Senate Committee Substitute for House Bill 126, 100th General Assembly (2019).

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT

August 13, 2019
OPINION LETTER NO. 168-2019 (revised)

The Honorable John R. Ashcroft
Missouri Secretary of State
James C. Kirkpatrick State Information Center
600 West Main Street
Jefferson City, MO 65101

Dear Secretary Ashcroft:

On August 12, 2019 we sent you a response to your request dated August 2, 2019, for our review under § 116.334, RSMo, of a proposed summary statement prepared for the petition submitted by Sara Baker regarding a proposed referendum to Senate Substitute for Senate Committee Substitute for House Bill 126 (2020-R001). Due to a typographical error we are reissuing our response. This response supersedes the previous opinion letter. The proposed summary statement is as follows:

Do you want to adopt House Bill 126 passed by the General Assembly in 2019, which specifically amends Missouri law to:

  • provide the unborn child with the same protections as those already born;
  • prohibit abortions at eight weeks of gestation (at which time there is a medically detected heartbeat), except in cases of medical emergency;
  • establish successive times at which abortions are prohibited (fourteen weeks, eighteen weeks, twenty weeks, all with medical emergency exceptions) if earlier time frames are found unlawful; and
  • prohibit an abortion based solely on the sex, race or Down Syndrome screening of the unborn child?

Pursuant to § 116.334, RSMo, we approve the legal content and form of the proposed statement. Because our review of the statement is mandated by statute, no action that we take with respect to such review should be construed as an endorsement of the petition, nor as the expression of any view regarding the objectives of its proponents.

Very truly yours,

ERIC S. SCHMITT
Attorney General

Supreme Court Building
207 W. High Street
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-0774
www.ago.mo.gov

OP-2019-0195