Proposed amendment would enshrine abortion in state’s Constitution, take away protections
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The proposed Amendment 3 to the Missouri Constitution would go far beyond ensuring what its promotors call “the right to reproductive freedom.”
Not only would it allow practically unrestricted access to elective abortion at any stage of pregnancy, it would override safeguards in Missouri law that help protect women from unsafe abortions.
Among these provisions are the requirement that only a medical doctor be allowed to perform abortions in the state; that parents of a minor be notified before she can have an abortion; and that abortion clinics comply with the state’s health and safety standards for outpatient surgical centers and be located close enough to a hospital that a woman can get treatment if life-threatening complications arise.
“If these or any of the other safety measures are perceived as a delay or denial of an abortion, they are plainly unconstitutional under this amendment,” stated Jamie Morris, executive director and general counsel for the Missouri Catholic Conference (MCC), public policy agency of the state’s four Roman Catholic dioceses.
He said prohibiting the government from meaningfully regulating a practice as serious as abortion makes Amendment 3 “an extremely dangerous proposition for women and for our whole state.”
Furthermore, the amendment would call into question whether a woman undergoing any sort of procedure pertaining to her reproductive system could seek damages if she or her baby is injured by that procedure.
Missouri voters will decide on Election Day, Nov. 5, whether to make the abortion amendment part of the state’s Constitution.
All that’s required is a simple majority.
Mr. Morris said the amendment’s flaws would be bad enough if they were part of a state law that could be changed or repealed during the next legislative session.
But as part of the state Constitution, the amendment would be very difficult to reverse, even after its shortcomings become evident.
The push for an abortion amendment is part of a state-by-state strategy by abortion-rights advocates to ensure access to the procedure in light of the U.S. Supreme Court’s 2022 Dobbs v Jackson Women’s Health Organization decision.
That decision sent the regulation of abortion from the federal government back to the states, ending nearly 50 years of legalized abortion throughout the country under the Court’s 1973 Roe v Wade and Doe v Bolton decisions.
In the decades since Roe was handed down, states including Missouri enacted safeguards and provisions that protected women and reduced the number of abortions.
With the Dobbs decision, Missouri’s previously passed “trigger law” prohibiting elective abortions in the state went immediately into effect.
Through all of pregnancy
On the surface, the abortion amendment appears to include clear limits on how far into pregnancy an abortion can take place.
“It establishes that the government can’t infringe on someone’s right to an abortion up until viability (of the preborn baby),” Mr. Morris noted.
Beyond that point of viability — generally understood to be 6 months after the baby is conceived — the abortion amendment says the state government can regulate but cannot prohibit abortion.
“(The government) still can’t interfere with a woman’s right to an abortion if there was a determination that the abortion is necessary after viability for the life of the mother or the health of the mother, including mental health,” Mr. Morris said of the amendment.
Who would make the determination about whether a fetus is viable or whether a health exception should be given?
The one providing the abortion.
“That is a very low threshold,” said Mr. Morris. “If the abortion provider is willing to certify that a woman is depressed or is worried about the pregnancy or that there could be some sort of emotional, psychological difficulty with it, that may be enough to allow abortion at any time, for any reason.
“So, we’re not just going back to how it was under Roe if we pass this thing,” he said. “It’s much, much more than that, and the consequences will be far-reaching.”
Root causes unaddressed
Kathleen Lavery, communication director for the MCC, cautioned against using the hardest cases, which make up 1 percent of abortions, as a basis for passing this amendment.
“Do we really want to pass this and say that the other 99 percent of women who seek abortions in the state will now be subject to unregulated safety and health provisions at these clinics, and have healthcare professionals who are not medial doctors be able to perform these abortions?” she asked.
She reiterated that the abortion amendment as currently written would only require that the one performing an abortion be a healthcare professional, not necessarily a medical doctor, which is required under current Missouri law.
She noted that many women who seek abortions do so out of fear of the repercussions of having a baby and not being able to care for him or her.
“A lot of women feel pressure to eliminate their unborn baby, and they eventually acquiesce to the outside pressure,” she said.
She pointed to a study by the Charlotte Lozier Institute (lozierinstitute.org) that concluded that over 70 percent of women who have had abortions experienced some sort of coercion to do so.
Ms. Lavery and Mr. Morris emphasized that Amendment 3 would do nothing to address the complex issues that leave many women convinced that they have no other choice but to seek an abortion.
“It doesn’t address the underlying issues that women face in unexpected pregnancies,” said Mr. Morris. “It doesn’t address economic concerns, it doesn’t address healthcare concerns, it doesn’t address any of the other problems out there.”
“Wild West mentality”
Mr. Morris predicted years of contentious litigation if Amendment 3 passes, as various interests push the limits of what it guarantees.
“What we already see in Michigan and Ohio, once they pass a constitutional protection or abortion, that’s when groups try to sue to remove waiting periods and other restrictions,” he said.
In Michigan, he noted, the ACLU is pushing to get taxpayer-funded abortion, by saying it’s discrimination for the government not to fund abortion when it pays for other medical procedures.
“Anything that could be construed as ‘interfering, denying or delaying’ abortion in the state will be challenged,” said Mr. Morris. “Any sort of safety provisions are going to be seen as a delay or an interference.”
Due to how it’s worded, Amendment 3 could also close the door on medical malpractice lawsuits.
“Subsection 5 says, in part, that anyone who assists a person exercising their right to reproductive freedom with that person’s consent, can’t be penalized, prosecuted or otherwise subjected to adverse action for doing so,” said Mr. Morris.
“So, what happens if you’re a medical doctor assisting with a pregnancy?” he asked. “Let’s say something goes wrong and either the woman or the baby is injured. If the doctor was helping the woman exercise her right to ‘reproductive freedom,’ can the doctor be shielded from specific action because of the way this amendment is worded?”
These and numerous other variables will have to be settled by litigation if Amendment 3 passes.
“So, how much of this Wild West mentality are we willing to tolerate?” Mr. Morris asked.
He said there are simply too many unknowns for responsible voters to pass this amendment.
“It’s never good government to drop something into the state constitution that we’re going to have to litigate for years and years to figure out what it truly does,” he said.
For more information on Amendment 3, visit the MCC website at mocatholic.org. and the Amendment 3 page on the diocesan website, diojeffcity.org/amendment3/
