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Oct. 16, 2024 | By: Anna Spoerre - Missouri Independent
By Anna Spoerre - Missouri Independent
Sean Johnson woke up last Monday planning to vote in November for Donald Trump and to legalize abortion in Missouri.
But the 48-year-old Independence resident changed his tune about Amendment 3 — which seeks to overturn Missouri’s abortion ban — after speaking to Eric Holder, a volunteer with the Knights of Columbus and member of St. Mary’s Parish in Independence.
Holder was canvassing the neighborhood hoping to drum up opposition to the proposal. He was a couple hours into his mission when he reached Johnson’s door, and by then had decided to hone his pitch to focus exclusively on a message that seemed to be resonating: that Amendment 3 would somehow also legalize sex change operations for minors.
“Abortion I’d vote for. That’s a woman’s right. Let her do that,” said Johnson, standing beneath a confederate flag outside his suburban Kansas City home. “But all this other stuff, gender reassignment, I don’t believe in that.”
Amendment 3, if passed by a simple majority of voters, would grant all Missourians “the right to make and carry out decisions about all matters relating to reproductive health care, including but not limited to prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.”
The provision has become a target for anti-abortion activists seeking to undermine the amendment by saying it would legalize gender-affirming care for minors.
Gov. Mike Parson and U.S. Sen. Josh Hawley, both Republicans, have argued Amendment 3 would allow minors to obtain gender transition surgeries without parental consent.
The claim also pops up on billboards, anti-Amendment 3 literature and in church bulletins at several Catholic parishes around the state.
But legal and medical experts interviewed by The Independent say this claim is a stretch at best — and at worst, an outright lie. Gender-affirming care, they say, would not be impacted by Amendment 3.
“To have honesty in public discourse is vital for the survival of the Republic,” said Chris Kelly, a former judge and Democratic state lawmaker from Columbia. “It’s a perfectly legitimate, honorable thing to fight this on the abortion issue. But to build wildly inaccurate straw men is deceptive and destructive to society.”
Kelly Gillespie, director of St. Louis University’s Center for Health Law Studies, said because the examples of reproductive health care listed in the amendment only apply to a person who is trying to prevent pregnancy, anticipating pregnancy, who is pregnant or who was recently pregnant, it would not apply to gender-affirming surgeries.
“Even if you accept that it could have this wild, expansive meaning, there still are ways within the text of the amendment that allow the government to pass laws around this topic,” she said. “It just says they have to be done in a way that’s the least restrictive means, and there has to be an important, compelling government interest.”
Gillespie said for the amendment to include gender-affirming health care, it would need to say so directly.
“It’s really reductionistic,” Gillespie said. “To talk about gender-affirming care like the only thing that is involved is what is in between somebody’s legs.”
Kelly Storck, a licensed clinical social worker and gender care therapist in St. Louis, said this particular way of campaigning against Amendment 3 harms members of the transgender community.
“They will continue to use trans people and discriminatory, hateful, dangerous rhetoric around trans people to get people to vote in the ways that they desire,” Storck said. “They will continue to use trans people for their own gain. We’ve seen it again and again and again, and I think it’s abhorrent and really sick.”
Since her September appearance before the Missouri Supreme Court unsuccessfully arguing to knock Amendment 3 off the November ballot, Mary Catherine Martin hasn’t had a moment to catch her breath.
“We are in full ground war with no money,” Martin said. “It’s a communications challenge.”
The coalition behind Amendment 3 has raised more than $25 million. The two largest political action committees fighting it have cumulatively raised just shy of $1 million.
Recent polling showed the abortion amendment was favored by 52% of those surveyed.
“We are losing this by talking about abortion all the time,” said Martin, an attorney with the Thomas More Society, a Catholic legal organization.
This means, aside from an occasional billboard or radio ad, the “vote no” effort has been relying on word of mouth to spread its message. That includes local churches and activists circulating fliers like one created by Martin, who recently created a “decoding” Amendment 3 guide.
Among her arguments against Amendment 3 is Martin’s assertion that the amendment is “an ACLU Christmas list” that includes legalizing gender-affirming health care.
The ACLU is currently representing transgender children and their parents in a lawsuit challenging the state’s 2023 law restricting minors from accessing cross-sex hormones, puberty blockers and gender-affirming surgeries.
“I would love to hear a credible argument that replacing one’s reproductive organs is not a matter relating to reproductive health care,” Martin said. “Because that’s the only way it’s not covered by this.”
Martin said the writers of the amendment did not clearly define what the amendment encompasses, pointing to the language that states it has to do with “all matters relating to reproductive health care.”
“We’re just supposed to be guessing what they intend and what they don’t, and that is a game that no one should be playing,” Martin said.
Tori Schafer, an attorney with the ACLU of Missouri, called the attempts to connect Amendment 3 with gender-affirming health care a “scare tactic,” adding that the definition is written into the amendment. The ACLU of Missouri, along with Planned Parenthood and Abortion Action Missouri, are part of the coalition behind the amendment.
“That’s why their accusations and the false statements they keep making about this boundless, unlimited right are just wholly false,” she said.
Schafer said that if Amendment 3 wins, the opposition’s narrative will shift to making the amendment as bounded and restrictive as possible.
If Amendment 3 passes, it will be challenged in court from various angles, from attempts to dismantle the state’s current laws regulating abortion providers to a determination of what defines fetal viability. Asked if someone were to test the application of gender-affirming surgeries under the amendment in court, Schafer said the decision would be up to a judge to decide.
Heather Walter-McCabe, an associate professor at the St. Louis University School of Law with expertise on LGBTQ health care access, said gender-affirming care treats gender dysphoria. She said while similar legal arguments are made in favor of both gender-affirming and reproductive health care, there’s no case she’s aware of where the former was considered reproductive health care.
“Just because they use the same legal arguments, because they’re both about bodily autonomy, does not mean that gender affirming care is reproductive health care,” said Walter-McCabe, who is both a lawyer and a social worker.
She said gender-affirming care has already been defined with its own standards of care separate from reproductive health care by the American Medical Association, the American Academy of Pediatrics, the Endocrine Society and the World Professional Association for Transgender Health.
Michael Wolff, a former chief justice of the Missouri Supreme Court and dean emeritus at the St. Louis University School of Law, said he doesn’t see how any rational judge could define gender-affirming surgery as reproductive health care.
“Polling tells you what you should misrepresent in order to damage the chances that this would pass,” Wolff said.
In the legal world, he said, every word in a law is known by the company it keeps, which is how Amendment 3 goes about defining reproductive health care.
Martin disagrees, saying every word has individual meaning.
“Look, a judge interpreting this is going to be looking for guardrails,” Martin said. “No judge is going to want to interpret it as broadly as it’s written, but like, there’s nothing in there to help them.”
Jamille Fields Allsbrook, an assistant professor of law at St. Louis University with expertise in reproductive health, rights and justice and health equity, said she understands how there could be some confusion over the colloquial language versus the legal interpretation.
But she doesn’t believe a judge would have any trouble limiting the scope of the amendment to exclude gender-affirming health care.
“The tricky part is that it’s not like I could point you to ‘the U.S. Code has a universal definition of reproductive health care;’ it just doesn’t,” she said. “And I think that is why folks are grasping onto that language.”
Marcia McCormick, a professor of law and women and gender studies at Saint Louis University, said the constitutional provisions list out examples of what would apply under an amendment and judges are still bound to interpreting the amendment within the context of those examples.
“The language is pretty narrow, so I think it would be a stretch for a judge to look at this amendment and say, ‘well, it’s really about bodily autonomy broadly,’” McCormick said, adding that medically, gender-affirming health care is anything that helps a person conform to the physiological social expectations of someone of their gender, and does not always directly overlap with reproductive health care.
Storck, the social worker, said she would “have no qualms if there was a loophole to protect trans people’s health care.”
But she doesn’t have the legal expertise to say how Amendment 3 will impact the lives of transgender Missourians. So instead, her goal is to speak up for the transgender youth she works with to make sure their voices aren’t drowned out as they are being demonized.
“People are really scared. People have lost access to care. People are not as safe,” Storck said. “The idea that they continue to be framed as dangerous, pathological, disturbed, weird continues this belief system that rejecting or dehumanizing these people is in some way going in the right direction, unilaterally.”
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