Missouri's Amendment 3 has ignited considerable controversy, especially due to its vague wording regarding reproductive rights and the possible impact it could have on gender transition procedures.
Introduction
Missouri's Amendment 3 has sparked significant debate, particularly concerning its broad language on reproductive freedom and its potential implications for gender transition surgeries. While the amendment lists specific categories such as prenatal care and abortion, it employs broad terminology that could encompass other medical procedures, including those not explicitly mentioned.
Understanding the Broad Language of Amendment 3
Subsection 2 of Amendment 3 refers to "reproductive freedom," granting all individuals the right to make decisions regarding "all matters relating to reproductive health care," irrespective of age or sex. This expansive language suggests that the amendment’s protections extend beyond the seven categories it explicitly lists, which include prenatal care, miscarriage care, and abortion services. Subsection 6 of Amendment 3 reinforces this by stating, “The Government shall not discriminate against persons providing or obtaining reproductive health care or assisting another person in doing so.” This prohibition against governmental interference or discrimination is key to understanding the full scope of the amendment’s protections.
Supporters of Amendment 3, including former Missouri Supreme Court Judge Michael A. Wolff, argue that in vitro fertilization (IVF), though not specifically mentioned, is implicitly protected by the amendment’s language. Wolff has stated that the amendment’s broad language would clearly apply to IVF, even if it is not explicitly listed among the protected procedures. Organizations such as Missourians for Constitutional Freedom and Planned Parenthood also support this view, seeing Amendment 3 as a safeguard against governmental overreach in personal health decisions. Planned Parenthood has stated that the amendment ensures “Missourians are in control of their personal health care decisions, not politicians”.
If IVF is included under the broad concept of reproductive freedom, the question arises: what other medical procedures could fall under this protection? Critics argue that it is not appropriate for voters to make decisions without a clear understanding of what is covered. As the courts may ultimately decide the amendment's reach, some have compared this situation to Nancy Pelosi’s famous statement on the Affordable Care Act: “We have to pass the bill so that you can find out what is in it.”
Gender Transition Surgery as Reproductive Healthcare
One of the most contentious issues surrounding Amendment 3 is whether gender transition surgeries and other gender-affirming care will be protected under its provisions. Advocacy groups argue that restricting access to gender-affirming care constitutes sex discrimination, and that such procedures should be considered a part of reproductive healthcare. The Biden Administration’s stance on this issue provides some insight into how such protections might be interpreted.
In May 2024, the U.S. Department of Health and Human Services (HHS) introduced changes to Section 1557 of the Affordable Care Act, expanding the definition of sex discrimination to include discrimination based on sexual orientation and gender identity. This rule prohibits healthcare providers and insurers from denying patients gender-affirming care, which includes surgeries. However, Missouri and six other states have filed lawsuits against the Biden Administration, challenging this mandate. Missouri’s Attorney General, Andrew Bailey, argued, “I am filing suit because I will not allow out-of-touch federal bureaucrats to force Missouri healthcare providers into performing experimental and dangerous gender transition procedures on the taxpayer dime…Doctors should not be compelled to harm children.”
The inclusion of gender transition surgery within the protections of Amendment 3 seems plausible, especially given its broad anti-discrimination clause. Subsection 6 would prevent state and local governments from denying access to gender-affirming surgeries based on the non-discrimination principle that covers all reproductive healthcare. The amendment’s language is inclusive of all individuals, regardless of sex or age, suggesting that minors could receive gender-affirming surgeries without parental consent, which is a significant concern for opponents.
Reproductive Freedom and Gender Transition Surgery
Supporters of gender-affirming care, including the World Professional Association for Transgender Health (WPATH), consider gender-affirming surgeries to be an essential part of reproductive healthcare. In its Standards of Care for Transgender and Gender Diverse People (Version 8), WPATH outlines that such care includes “gynecologic and urologic care, reproductive health, voice and communication therapy, mental health services, and hormonal or surgical treatments”. These standards underscore the interconnectedness of reproductive and gender-affirming healthcare, suggesting that gender transition surgeries could be considered reproductive healthcare under Amendment 3.
Planned Parenthood has echoed this view, stating that “Transgender rights and reproductive rights are intertwined,” both arising from the fundamental right to control one’s body and make personal health decisions. The organization has made it clear that it views gender-affirming care as lifesaving and essential healthcare that should be protected from political interference.
Similarly, the National Women’s Law Center (NWLC) has advocated for the inclusion of gender-affirming care within the broader framework of reproductive justice. The NWLC asserts that “protecting the right to self-determination of gender identity and bodily autonomy is part of reproductive justice,” and that all individuals should have the right to make decisions about their bodies, including access to gender transition surgeries.
Taxpayer Funding
In state Medicaid and other state public health insurance programs, subsection 6 of Amendment 3's “non-discrimination” mandate would force health care insurance plans and the insured to subsidize other “reproductive health care” choices through payment of health care premiums.
Amendment 3 would compel state taxpayer funding of not only abortion throughout pregnancy for any reason (or for no reason at all), but it would also compel Missouri taxpayers to fund any other procedures, drugs, therapies, etc. that support the broad, undefined category of “reproductive freedom”.
Legal Implications for Missouri Voters
Amendment 3’s broad language places a heavy burden on Missouri voters to interpret its scope. Critics argue that the courts will ultimately decide the full range of protections the amendment provides, particularly concerning procedures like gender transition surgery. This uncertainty makes it difficult for voters to fully understand what they are approving. While the amendment’s intent is to protect reproductive freedoms, its broad wording leaves room for wide-ranging judicial interpretation, potentially extending these protections to areas like gender transition surgeries with no regard or limit to age or even sanitation standards.
Conclusion
The vague and overly broad language of Amendment 3 could lead to extreme interpretations, including the inclusion of gender transition surgeries, which raise serious ethical, moral, and public health concerns. Additionally, the lack of clear limitations, particularly regarding minors and parental consent, threatens the traditional family structure and undermines parental rights. Missouri voters should be concerned about granting such broad authority to the courts, as Amendment 3's potential to impose radical changes makes it a risky and unnecessary alteration to the state's Constitution.
-Written by Samuel H. Lee