Depending on whom you ask, the proposed Amendment 3 will shield doctors from malpractice suits, allow psychologists to perform abortions and authorize gender-affirming care for minors. Or, it decidedly will not.
Amendment 3 legalizes abortion until the point of fetal viability. The amendment leaves possible post-viability abortions that are medically necessary “to protect the life or physical or mental health of the pregnant person.”
If passed by voters on Nov. 5, Amendment 3 will allow lawmakers to regulate abortion and reproductive health care as long as the regulations improve the pregnant person’s health, are in line with clinically accepted health care practices and do not infringe on a person’s right to choose.
The amendment, which would enshrine the right to abortion in the Missouri Constitution, has been the source of political wrangling long before petitions were circulated seeking to place it on the ballot. Now, supporters say it is the subject of a misinformation campaign.
Ten states this year have ballot measures related to abortion or reproductive rights. Nebraska’s ballot will include two measures, one to further restrict access and another to enshrine access up to viability as a right in the state’s constitution.
Missouri became the first state to outlaw abortion in 2022 after the U.S. Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion. Attorney General Eric Schmitt signed a trigger law banning abortion minutes after the ruling was made public.
The state has exceptions in cases of medical emergencies. Some Missouri doctors say that even in emergencies, the law jeopardizes their ability to treat patients. On Sept. 16, a group of more than 800 medical professionals signed a letter supporting the amendment.
“Doctors can’t treat patients with heartbreaking pregnancy complications until they are on the brink of death. Otherwise, they could be put in jail,” the letter stated. The state health department recorded 37 abortions occurring in Missouri last year, the lowest number recorded since 1971.
People experiencing complications such as late-term miscarriages, prematurely ruptured membranes, ectopic pregnancies or who are diagnosed with cancer while pregnant are being sent away from hospitals, said Yvonne Lindgren, an associate professor of law at the University of Missouri-Kansas City School of Law who specializes in health law and reproductive rights. She said Amendment 3 will change that.
“It is going to make it so that doctors can provide medically necessary services without the fear of being criminally prosecuted for a Class B felony,” she said. “That’s a sea change.”
If Amendment 3 passes, Missouri’s existing health care regulations will apply. Some states allow non-physicians, including registered nurse practitioners, to provide abortions.
“That doesn’t mean you can provide an abortion if you’re a psychologist. I mean, that doesn’t make any sense,” Lindgren said. “Amendment 3 is not going to suspend Missouri’s existing, very robustly codified rules regulating the medical profession, including who is permitted to perform abortion.”
The amendment also states no one getting an abortion or “assisting a person in exercising their right to reproductive freedom with that person’s consent” can be “penalized, prosecuted, or otherwise subjected to averse action.”
In his initial description of the ballot measure later thrown out by a court ruling, Secretary of State Jay Ashcroft wrote that the amendment will “prohibit any civil or criminal recourse against anyone who performs an abortion and hurts or kills the pregnant women,” the Missouri Independent reported.
Last month, 22 Republican state lawmakers signed a letter echoing concerns about provider immunity. The letter reads: “Perhaps most disturbingly, Amendment 3 shields health care providers and individuals assisting with reproductive healthcare from being sued for malpractice.”
A patient can still sue a doctor or health care professional for malpractice for failure to observe the prevailing medical standards of care or failure to obtain informed consent, said Susan Appleton, a law professor at Washington University.
“That’s a private action by the patient against the doctor,” she said. “This (Amendment 3) is about what the state can do.”
The amendment likely would not affect conscience clauses, which allow medical professionals who oppose abortions to opt out of the procedure, she added.
Elective abortions could still face restrictions. There is no guarantee Amendment 3 will invalidate existing Missouri statutes related to abortion, including requirements to wait 72 hours between appointments, receive counseling, get an ultrasound, or receive parental consent for minors. Courts would need to adjudicate existing laws and any future laws passed by the Missouri General Assembly.
Many states where abortion is legal do not require minors to receive parental consent for the procedure.
“As a mother I would be completely eliminated” from the decision by Amendment 3, said Stephanie Bell, an attorney and abortion opponent.
Amendment 3 is not limited to abortion; it also protects reproductive rights including birth control. If passed, the amendment says, the government could not “deny or infringe upon” rights related to “reproductive health care, including but not limited to prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care, and respectful birthing conditions.”
“It goes far beyond abortion,” said Bell. “It’s far more radical than what we had under Roe v. Wade.”
Some opponents interpret “not limited to” as including gender-affirming care for minors without parental consent. The amendment does not mention gender-affirming care. Because it uses the term “person” instead of “women” or “woman,” opponents argue that “reproductive freedom” encompasses gender transition treatment, including hormones and surgeries.
“This has the potential to strip parents of their right to be involved in their children’s health care decisions, even in life-altering situations such as gender transition procedures,” the Republican state senators wrote in their letter opposing the amendment.
Amendment 3 does not mention gender-affirming care or transgender treatments, and supporters dismiss the idea as a red herring.
“If you can’t win on the plain language, which is that this is about Missouri’s abortion ban, then you’re going to try to manipulate the situation,” said Emily Wales, president and CEO of Planned Parenthood Great Plains.
