Would MO abortion Amendment 3 legalize surgery for trans kids? It's highly unlikely, experts say

With abortion access on Missouri’s November ballot, anti-abortion advocates are arguing that a proposed amendment, Amendment 3, goes beyond giving women the right to choose whether to have children. 

"It will mandate constitutionally, all reproductive health services, and that includes transgender treatments for minors," Sen. Josh Hawley, R-Mo., said at a Sept. 7, religious conference in Ozark, Missouri, a city 227 miles southwest of St. Louis.

"Vote NO on Amendment 3" billboards hammer a similar message: "No tax paid transgender surgery," they say.

And in an October constituent letter, Missouri’s Republican governor, Mike Parson, warned the measure, "opens the door to allow children to get sex change operations without parents’ knowledge in our state." 

Missouri was the first U.S. state to outlaw abortion following the Supreme Court’s 2022 overturning of Roe v. Wade, the 1973 ruling that said abortion access was a federally protected right. Amendment 3 aims to change that by overturning the state’s abortion ban and adding protections for reproductive care access.

The proposed amendment’s text doesn’t mention gender-affirming health care or transgender people. But critics argue the amendment’s language is so broad that a court could interpret it to include gender-affirming care. Several legal experts told PolitiFact that a court interpreting the amendment that way was highly unlikely.

This dispute hinges on one’s legal interpretation of the amendment’s phrase, "all matters relating to reproductive health care." And it comes as polling shows Amendment 3 is very popular — 52% likely Missouri voters in August said they support its passage.

"Now's the time to try everything if you're on the wrong side of that number," University of Missouri political scientist Jake Haselswerdt said.

For Amendment 3’s opponents, connecting the issue to gender-affirming care could make political sense: In 2023, similar polling in Missouri found strong opposition to policies that would allow gender-affirming care for minors.

Here’s what we know. 

Missouri’s near total abortion ban took effect in June 2022 after Roe was overturned. Abortion rights advocates describe it as one of the nation’s most restrictive laws, with limited exceptions in cases involving medical emergencies.

Amendment 3, which endured numerous legal challenges before landing on the Nov. 5 ballot, would constitutionally protect the right to abortion up until fetal viability, typically around 24 weeks of pregnancy, and restore Roe-era protections.

The amendment’s full text includes a 53-word passage that anti-abortion activists’ are focusing on: 

"The Government shall not deny or infringe upon a person’s fundamental right to reproductive freedom, which is 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." 

Missouri outlawed gender-affirming care for minors in August 2023, though some of the provisions are set to expire in 2027. Missouri’s law also blocks Medicaid coverage for gender-affirming care for adults. The American Civil Liberties Union has challenged that ban in court.

Mary Catherine Martin is senior counsel at the Thomas More Society, a conservative law firm that has been suing to keep Amendment 3 off the ballot. 

She argued that the phrasing "all matters relating to reproductive health care, including, but not limited to," could include anything related to reproductive organs — and such broad language would force courts to read the amendment broadly.

"It's the breadth of the language that we're considering adopting," she said. "It doesn't have any narrowing language to allow judges to narrowly define reproductive health care, to exclude gender-affirming care and really anything relating to the reproductive system."

Martin pointed PolitiFact to a U.S. Department of Health and Human Services definition in a federal regulation on HIPAA privacy that says reproductive health care is care "that affects the health of the individual in all matters relating to the reproductive system and to its functions and processes."

But a caveat says the definition "shall not be construed to set forth a standard of care for or regulate what constitutes clinically appropriate reproductive health care." 

Other legal experts said they did not read Amendment 3’s language as applying to gender-affirming care, and didn’t suspect a court would, either, partly because they didn’t know of any courts having interpreted it that way before.

"It would be trying to put a square peg into a round hole, and seems like a complex reach," St. Louis University School of Law associate professor Heather Walter-McCabe said. "It is a completely different area of healthcare." 

Missouri state law does not define "reproductive health care." Major health organizations such as the Centers for Disease Control and Prevention, the Department of Health and Human Services, the American College of Obstetricians and Gynecologists, and the American Medical Association refer to reproductive health care as relating to issues of pregnancy, contraception, and abortion — not gender-affirming care. 

Some forms of gender-affirming care, notably surgeries typically reserved for adults, can alter genitalia and reproductive organs. Other hormone treatments can also affect fertility, but, in this discussion, a patient’s reason for seeking such care is relevant, experts said. 

"Gender-affirming care is usually not pursued by people either because they do or don't want to reproduce," University of California, Davis law professor Mary Ziegler said. "And the term ‘reproductive care’ usually is applied to things that are focused on reproduction. … It’s not a use I've seen courts adopt before."

Hawley’s office pointed PolitiFact to examples it said showed organizations defining reproductive care as transgender care. Several were advocacy groups linking the fight for reproductive rights to the fight for access to gender-affirming care, but these do not constitute a legal definition of reproductive health care.

Hawley’s office also referred to health care providers who offer reproductive care to transgender patients, who might have unique health needs such as menstrual suppression and fertility counseling. But that does not mean that all gender-affirming care, which includes social transition, hormone treatments and surgical interventions are considered reproductive health care.

St. Louis University law professor Marcia McCormick similarly said she sees it as "highly unlikely that a court would interpret this language to reach most kinds of gender-affirming care, or gender affirming care without reference to some person's desire to prevent pregnancy."

If Amendment 3 passes, laws wouldn’t change overnight. To repeal existing laws, someone would have to sue and argue in the state’s court that Missouri's current statutes, including the state’s abortion ban, are invalid under the new amendment.

Likewise, someone would have to argue that the amendment as written includes gender-affirming care. 

Legal experts besides Martin acknowledged that the amendment’s phrasing allowed for some flexibility but countered the assertion that phrases such as "all matters relating to" or "including but not limited to" allow for limitless interpretation of the language. 

"Courts interpreting laws are using standards of reasonableness," said Kelly Gillespie, law professor and director of the Center for Health Law Studies at St. Louis University school of law.

The "common sense" definition of reproductive health care includes things like contraception, treatment during pregnancy, abortion, and treatment during and immediately after birth, Gillespie said, "where the purpose of care is about reproduction as opposed to health care that might have an incidental effect on reproductive organs."

Gillespie said it's highly unlikely Amendment 3 would change Missouri’s current laws on gender-affirming care.

"I really believe there are no secret Trojan horses in this amendment," she said. "I think the existing gender-affirming care ban induces far more harm than it sought to correct. However, I don't think the passage of Amendment 3 is going to lead to the reversing of the gender-affirming care ban statute."