Missouri AG Issues Opinion on Which Abortion Restrictions Remain Enforceable After Reproductive Freedom Amendment

Missouri Attorney General Andrew Bailey has issued Opinion Letter No. 22-2024, (Nov. 22, 2024) outlining the extent to which the state's restrictive abortion laws are still enforceable after voter adoption of a state constitutional amendment protecting abortion rights. The Opinion Letter was requested by Missouri Governor-Elect Mike Kehoe. The Attorney General's Opinion Letter reads in part:

... Amendment 3 was adopted-- just barely-- by a margin of 3%. In a contest where the "yes:" side was able in effect to rewrite the ballot summary language, receive tens of millions of dollars in funding from out of state, and outspent the "no" side 6 to 1, this tight margin suggests the result may be very different if a future constitutional amendment is put up for a vote.

Nevertheless, until and unless voters have an opportunity to vote again ..., Amendment 3 will render some statutes unenforceable.... Missouri statutes entirely prohibit elective abortions-- i.e., abortions other than those performed because of a medical emergency.... Amendment 3 ... will generally prohibit ... officials from enforcing these provisions....

... [T]here will remain some circumstances where these five statutes are enforceable....

First, under the express terms of the amendment, the government may still protect innocent life after viability....

Second, the Attorney General will continue to enforce these statutes in circumstances where parents do not consent to an adolescent minor obtaining an abortion. Under the U.S. Constitution, parents have a "fundamental right ... to make decisions concerning the care, custody, and control of their children."... This includes the "right to refuse unwanted medical treatment."... Amendment 3 cannot displace that federal constitutional right....

... [W]hen the Supreme Court reversed the Roe line of cases, ... the court restored longstanding parental rights.

Third... [t]he right of parents to forbid minors from obtaining abortions should not be misunderstood to somehow imply a right to force abortion on minors.

The same is true for adults coerced into abortion.... Amendment 3 does not give abortion clinics a right to perform abortions on women who have been coerced....

Missouri Independent reports on the Attorney General's Opinion Letter. [Thanks to Scott Mange for the lead.]

3 States' Voters Remove Unenforceable Anti-Gay Marriage Provisions

On Tuesday, voters in three states approved measures recognizing same-sex marriage and eliminating now-unenforceable provisions to the contrary in their state constitutions. 

In California, voters declared marriage to be a fundamental right and repealed a state constitutional provision that defined marriage as a union between one man and one woman. The vote was 61.04% in favor and 38.96% opposed.

In Colorado, voters removed a constitutional provision that only permitted state recognition of marriages between one man and one woman. The vote was 63.88% in favor and 36.12% opposed.

In Hawaii, voters removed a constitutional provision that allowed the legislature to reserve marriage to opposite-sex couples. The vote was 55.99% in favor and 44.01% opposed.

Ballotpedia has additional details.

School Choice and Funding for Students at Non-Public Schools Lose In 3 States

School choice and state funding for students at non-public schools was unpopular among voters on Tuesday.

Colorado voters defeated a proposed constitutional amendment that would have guaranteed every K-12 child the right to school choice and have guaranteed parents the right to direct the education of their children. The vote was 48.03% in favor and 51.97% opposed.

Kentucky voters defeated a proposal that would have allowed the state legislature to provide state funding for private and parochial schools. The vote was 35.24% in favor and 64.76% opposed.

In Nebraska, voters voted to repeal a statute that provided for funding of scholarships for students at private and parochial elementary and secondary schools. The vote was 57.06% in favor of repeal; 42.94% opposed to repeal.

Ballotpedia has additional information and links to final ballot results.

Exit Polling Shows Presidential Vote by Religion of Voter

Exit polling by Edison Research, published by the Washington Post, shows the percentage of voters of various religious faiths who voted for each of the two main presidential candidates in the 2024 November elections:

Catholic: 58% Trump; 40% Harris.

Protestant and Other Christian: 63% Trump; 36% Harris.

Jewish: 22% Trump; 78% Harris.

Other Religion: 34% Trump; 59% Harris.

No Religion: 26% Trump; 71% Harris.

White Evangelical Born-Again Christians: 82% Trump; 17% Harris.

Abortion Rights Proposals Approved by Voters In 7 of 10 States

In ten states yesterday, voters were asked to approve ballot measures that would guarantee abortion rights.  Voters approved proposals guaranteeing abortion rights in 7 of the 10 states.  Here are the results of those votes as of Wednesday morning. Ballotpedia has details of each proposal and updated vote figures:

• Arizona- 61.74% in favor; 38.26% opposed (50% of precincts reporting)
  
  
• Colorado- 61.48% in favor; 38.52% opposed (73% of precincts reporting)
  
  
• Florida- 57.13% in favor; 42.87% opposed (60% vote needed to approve the constitutional amendment) (93% of precincts reporting)
  
  
• Maryland- 74.11% in favor; 25.89% opposed (76% of precincts reporting)
  
  
• Missouri- 51.85% in favor; 48.15% opposed (95%+ of precincts reporting)
  
  
• Montana- 57.44% in favor; 42.56% opposed (87% of precincts reporting)
  
  
• Nebraska- pro-abortion rights proposal: in favor 48.66%; opposed 51.34%.  Abortion ban after first trimester proposal: in favor 55.32%; opposed 44.68% (99% of precincts reporting)
  
  
• Nevada- 63.33% in favor; 36.67% opposed (84% of precincts reporting)
  
  
• New York- 61.51% in favor; 38.49% opposed (85% of precincts reporting)
  
  
• South Dakota- 40.28% in favor; 59.72% opposed (91% of precincts reporting)

Florida Voters Sue Claiming Invalid Signatures on Abortion Rights Amendment Petitions

Suit was filed last week in a Florida state trial court against election supervisors in 12 Florida counties, as well as against the Secretary of State, other state officials and the sponsors of Amendment 4, a proposed abortion rights amendment that appears on the November Florida ballot. The complaint, brought by four Florida voters, alleges illegal and fraudulent petition signature-gathering efforts. Plaintiffs rely in large part on the Office of Election Crimes and Security's October 2024 Interim Report to Legislature on Initiative Petition Fraud Related to the Abortion Initiative.  The complaint (full text) in Hoffman v. Barton, (FL Cir. Ct., filed 10/16/2024), includes 348 pages of exhibits and alleges in part:

186, Because FPF submitted signatures collected on a pay-per-signature basis, the petition process was substantially infected by fraud and corruption. The substantial fraud and corruption that permeated the election process constitutes a basis for the Court to decertify and strike Amendment 4 from the 2024 General Election Ballot or—if this case is not resolved before the election—to enjoin the State Defendants from counting the votes or, if passed, to enjoin the State Defendants from giving effect to votes cast in favor of Amendment 4.   

187. Although the Secretary of State has issued a certificate of ballot placement, the certificate does not cure the fraud and corruption that infected the petition process. Moreover, if the 2024 General Election occurs prior to the resolution of this action, passage will similarly not cure the fraud and corruption that resulted in Amendment 4’s passage. 

In October, the ACLU responded to the Interim Report, saying in part:

The Secretary of State’s unprecedented and suspiciously-timed report makes nonsensical claims about a few hundred petitions, which would have had no effect on the campaign meeting the statutory requirements. Importantly, the state had an opportunity to file objections to petitions before April, but did not object to the inconsequential petitions for which it is now attempting to sanction and publicly chastise the campaign.

Liberty Counsel issued a press release last week announcing the filing of last week's lawsuit.

Election of Student School Board Member by Public School Students Did Not Violate Free Exercise Clause

 In Kim v. Board of Education of Howard County, (4th Cir., Feb. 28, 2024), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of equal protection and free exercise challenges to the procedure that Howard County, Maryland uses to select a high school student to be one member of its 8-member school board. The student member is chosen by a vote of public-school students in grades 6 through 11. One of the plaintiffs contended that this process violates the Free Exercise clause because it excludes plaintiff's son who attends a Catholic school from participating in the selection process. The court concluded that the selection process is neutral and generally applicable and therefore subject only to rational basis review. The court said in part: 

Maryland’s law does not consider religious motivation but depends on public school enrollment. To the extent the law has an effect of excluding religious students, it does so “in spite of” and not “because of” those students’ religious reasons for forgoing public education.... The law is neutral. 

It is also generally applicable.,,,  Maryland’s law makes no distinction between religious and secular. It bars non-public-school students, religious and nonreligious alike, from choosing or serving as the student member.....

Howard County does not let any private schools, religious or nonreligious, participate in selecting the board of education student member.... Strict scrutiny plays no role in judging this textbook neutral and generally applicable selection criterion.....

Without the benefit of heightened judicial scrutiny, the parents have failed to state a viable claim under either the Equal Protection Clause or the Free Exercise Clause under rational basis review.

Ohioans Vote On Reproductive Rights Amendment

In Ohio today, voters are casting ballots on State Issue 1 that, if approved will add the following to the Ohio Constitution:

Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety

A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.

B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:

1. An individual's voluntary exercise of this right or

2. A person or entity that assists an individual exercising this right,

unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.

However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.

C. As used in this Section:

1. “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”

2. “State” includes any governmental entity and any political subdivision.

D. This Section is self-executing.

Ballotpedia has additional information on the proposed amendment. Live election results will be available here.

UPDATE: With 84% of the precincts reporting, the measure has passed 55.6% to 44.4%.

Maryland County's Election Process for Student School Board Member Survives Free Exercise Challenge

 In Kim v. Board of Education of Howard County, (D MD, Nov. 18, 2022), a Maryland federal district court rejected both equal protection and free exercise challenges to the manner in which the student member of the 8-member Howard County School Board is selected. In an elaborate process, the final step in the selection of the student member is a vote by public school students in grades 6 to 11. In rejecting the free exercise claim, the court said in part:

Plaintiffs argue that the Student Member selection process violates the First Amendment’s Free Exercise Clause because it bars certain students from voting for the Student Member “solely because they attend a religious school or are homeschooled for religious reasons.”... This claim will be dismissed because Plaintiffs have not plausibly alleged that the Student Member statute burdens religion—and even if it did, the law is neutral and generally applicable.

The court also rejected equal protection claims that the process violated the one-person one-vote mandate and uniformity rules.

Religious Parties Winning 33 Seats In Israel's Knesset Election

Haaretz reports that as of 4:07 PM Nov. 2 (Israeli time), with 85.9% of the vote in yesterday's election counted, three Jewish religious parties appear to have won seats in the Knesset: Religious Zionism- 14 seats; Shas- 11 seats; United Torah Judaism- 8 seats.  Benjamin Netanyahu's Likud Party appears to have won 32 seats, so that in coalition with the religious parties, they will have a majority of the 120 seats in the Knesset. There could be some change in these numbers as Meretz has won 3.19% of the vote so far. If this increases to 3.25% in the final tabulation, it will take a seat.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Religious Voter Trends To Watch In Today's Election

A Religion News Service analysis suggests 7 religious voter trends to watch for as election results begin to be reported today: Black Protestant turnout; Muslim turnout in Michigan; Jewish turnout in Pennsylvania and Florida; Shifts among white mainliners and Catholics in the Rust Belt; Small but important shifts among Hispanic and Latino religious voters; Any movement among white evangelicals; and Latter-day Saints in Arizona.

Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Roy Moore Moves To Run-Off Against Luther Strange In Alabama U.S. Senate Primary

As reported by AP and the New York Times, former Alabama Supreme Court Chief Justice Roy Moore came in first, capturing 38.9% of the vote, in yesterday's Alabama Republican primary for U.S. Senate. He will face incumbent Luther Strange, who received 32.8% of the vote, in the second round of the primary on Sept. 26.  Moore was removed as Chief Justice in 2003 when he refused to obey a court order to remove a Ten Commandments monument that stood on the state courthouse grounds.  After being re-elected as Chief Justice, last year he was suspended from his position for instructing probate judges to deny marriage licenses to same-sex couples. (See prior posting.)

More On Presidential Voting By Religious Groupings

Earlier this week, the Pew Research Center, using exit polls, published How the faithful voted: A preliminary 2016 analysis.  It breaks down the vote in last Tuesday's Presidential election by faith group.  The group giving Donald Trump the largest percentage-- 81%-- of their vote were described in the survey as "White born-again/ evangelical Christians". The category overlaps some of the other categories reported: Protestant/ other Christian- 58%; White Catholic- 60%. Groups giving Trump the lowest percentage of their votes were: Jewish- 24%; Hispanic Catholic- 26%; Religiously unaffiliated- 26%.

In the same vein, yesterday the New York Times posted an article titled Religious Right Believes Donald Trump Will Deliver on His Promises, saying in part:

Now that he has won, evangelical leaders say they are confident Mr. Trump will deliver on the political promises he made to them. These include appointing a conservative to the Supreme Court, defunding Planned Parenthood, protecting businesses that refuse to provide services for same-sex weddings and rescinding the mandate in the Affordable Care Act that requires insurance coverage for birth control.

And with Gov. Mike Pence of Indiana, an evangelical with a record of legislating against abortion and same-sex marriage, as vice president, Christian leaders say they feel reassured they will have access to the White House and a seat at the table.

U.S. Muslim Leaders Urge Messages of Hope At Friday Prayers

A press release yesterday from CAIR urged Muslim prayer leaders and imams to address post-presidential election anxieties in sermons during their regular Friday prayer services today. An outline of talking points for leaders prepared by Sh. Omar Suleiman, president of the Yaqeen Institute for Islamic Research in Texas, was included. Here are some excerpts:

We have to come to terms with the idea that will be faced with some level of hardship with our faith regardless of the circumstances. Part of ending harm towards the community collectively is individually being ready to dispel stereotypes. In Makkah, the public display of the faith was the protest of the Companions. We must also continue to publicly be unapologetically Muslim....

It’s very easy for us to say that they all hate us, and there is no good left in the people. Instead let us remind ourselves that the Prophet (peace be upon him) prayed for the people most sincerely when their rejection for him was most severe. He prayed for them at Ta’if when they struck him in the face, and at Uhud when they almost killed him....

The under 25 voters were almost unanimous in expressing what type of America they wanted to live in. And it is not one of bigotry or xenophobia. We have to make sure we continue to invest in the younger generation so that they don’t repeat the mistakes of the past (and in this case, the present). We must continue to build institutions that will stand for justice and peace for generations to come. The Day of Judgment has not come yet, and even if it had, we would still be required to finish planting what is in our hands.

Down-Ballot Results of Interest

In a pre-election post I identified several down-ballot contests that were of interest to those following religious issues. Here are the results from yesterday in those contests:

1. Oklahoma Question 790 that would have amended the state constitution to eliminate the ban on use of public funds to support religious institutions was defeated-- 43% yes and 57% no.
2. Missouri Constitutional Amendment 3 that would have imposed a cigarette tax to fund early childhood initiatives and would have exempted grants in the program from the ban on use of funds to support religious entities was defeated 59% to 41%.
3. Montana Supreme Court candidate Kristen Juras whose conservative Christian religious beliefs became a campaign issue was defeated 56% to 44%.
4. Ohio District 37 state legislature candidate Casey Weinstein sho had been a plaintiff in a suit against the U.S. Air Force Academy alleging Christian proselytizing lost 57% to 43%.
5. In Missouri, Republican Attorney General candidate Josh Hawley who disagrees with the state's position in the Trinity Lutheran case now before the U.S. Supreme Court in which the state denied a playground grant to a church on state constitutional grounds won 59% to 41%.

Tuesday Exit Polls Reveal Voting Behavior By Religious Affiliation

The Fox News Exit Polls published yesterday include a number of questions about religious affiliation and voting behavior on Tuesday.  While Republicans did well nationally, the poll shows significant variation in support for Republicans depending on the voter's religious affiliation. Here are the percentages by religious persuasion who voted Republican: Mormon- 73%; Protestant-65%; Other Christian- 55%; Catholic- 34%; Jewish 33%; Other religion- 32%; No religion- 29%. For the sub-category of White evangelical or born again Christians, 78% voted Republican.