Amendment 3: "The Right to Reproductive Freedom Initiative"

Because parental notice and consent requirements would face the gauntlet of the presumption of invalidity and super-strict scrutiny, Missouri's parental consent law[3] would be subject to nullification if voters approve the initiative.

A law professor was quoted in a recent St. Louis Post-Dispatch article as assuring that parents have a "fundamental constitutional right to the care, custody, and control of their minor children." In this argument, parental rights proceed from the Due Process Clause of the U.S. Constitution. Federal constitutional rights trump state laws.[4] Therefore, it is said, the current Missouri parental notice and consent statute would survive voter approval of the initiative.

Unfortunately, the interaction of federal rights and the proposed state constitutional amendment in this instance is not as simple as that.

While decisions of the U. S. Supreme Court outside the context of abortion have sometimes described the parents' right to the upbringing of children as a "fundamental right" under the U.S. Constitution's Due Process Clause[5], in the context of abortion parental rights have never been accorded that respect. Three years after Roe v. Wade, the Court held in a case arising in Missouri that no parental rights could ever outweigh the right of a pregnant minor to have an abortion.[6]

A few years later, the Court gave a weak nod to the reality that some (if not all) minors were just too young to make life-altering decisions about aborting their offspring. The Court approved state laws under which a judge would make the decision whether a minor's abortion would be allowed when parents would not consent to the abortion. The minor could seek an expedited court order either that the minor was sufficiently mature to give her own consent to the abortion or, if not, that the abortion was in the minor's best interests.[7] In this "judicial bypass," the judge's decision would substitute for the judgment of the minor's parents.

The proposed amendment would allow an abortion after "Fetal Viability" up to the time of birth if a "treating health care professional" expressed a judgment that an abortion "is needed to protect the life or physical or mental health of the pregnant person."[9] Subsection 8 defines "Fetal Viability" as "the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures."

Using viability as a line for demarcation of legal rights has no medical or scientific basis. Planned Parenthood itself has lambasted the use of viability for this purpose. "Viability is not a medical construct and has no relevance to clinical care. It is a political construct set under Roe v. Wade. We now know that the viability standard tried and failed to balance state and personal interests, and it did not work."[10]

Even if the child is deemed viable under the definition found in subsection 8, he or she can still be aborted for reasons of the "physical or mental health" of the mother. "Physical or mental health" is not defined in the amendment. In the Roe years, the U.S. Supreme Court held that the woman's "health" should encompass all factors, "physical, emotional, psychological, familial, and the woman's age," relevant to her well-being.[11] The intentionally vague language of the proposed amendment invites courts to adopt a similar meaning again.

Obviously some of the factors mentioned by the Supreme Court are not medical at all. Non-physicians--"treating health care professionals"--may well be making the final decision on whether the amendment's health exception applies in any particular case. And no one will be in the treatment room who wants the child to live.

Missouri law already has a health exception in its current abortion laws. It allows abortions when medical conditions "necessitate the immediate abortion of her pregnancy to avert the death of the pregnant woman or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman."[12] This definition needs no change.

Most Missourians do not want late-term abortions for any conditions that our law does not already take into account. The amendment should be rejected accordingly.

The initiative assumes that when a woman becomes pregnant unexpectedly, there is automatically a conflict between mother and child. The proposed amendment does not even mention that there is a living being in the womb of the mother, created from human parents, with an entire lifetime ahead if allowed to continue his or her life.

At no point does the initiative take seriously that all human beings are entitled to equal justice under law. In only one place, the passing reference to "Fetal Viability" in subsection 4, is there even a hint that the life of another human being is involved. The proponents would rather ignore the existence of a human being than find ways to help him or her to develop and grow.

We should "follow the science" in respect to the unborn. It is long-established in biology that a new human being is created at conception, with a unique set of chromosomes. The little human is not and cannot be merely "tissue" of the mother when it is distinct in its genetic composition. This is easy to see when one considers that half the time the child is biologically male, not female.

A full description of human development of the unborn would take pages. Readers will find a concise depiction of an unborn child's development in a video produced by Live Action and available at https://www.lifesitenews.com/news/new- window-to-the-womb-interactive-app-shows-reality-of-preborn-babies. All people should consider alternatives to abortion that are available at Pregnancy Resource Centers. An unexpected pregnancy should not be made into a mortal conflict between mother and child, but as the beginning of a relationship that may last a lifetime.

The lives of unborn children depend on voting "no" on the initiative.

If the initiative is adopted, the laws and regulations for health and well-being of women in regard to abortion will again become subjects of contention. Abortionists attacked them before the Dobbs decision and lost many challenges, but the initiative will give them a new legal basis for attacking them again.

Still on the books from the Roe v. Wade days are many common-sense regulations for everyday operations of abortion ambulatory surgical centers including regulations for licensing, assuring safe and sterile facilities, record-keeping, regular health inspections, and enforcement procedures.[13]

Other standards have been enacted with a view toward the extraordinary impact of abortions on the lives of women, often with consequent mental and emotional burdens. These include requirements for provision of factual materials about the development of unborn babies throughout pregnancy and the opportunity to view a video sonogram of the child (RSMo. section 188.027.1 (4)), a 72-hour reflection period to sort out all the considerations that are involved in the abortion decision (RSMo. section 188.027.1 & .8), and mandatory reporting of abuse of minors (RSMo section 188.023).

Many more beneficial regulations could be cited, but the important point is that all such regulations, and more, would be subject to nullification under the provisions of the initiative under the scrutiny described in the Introduction. Compliance with safety regulations that might increase the cost of abortions could be interpreted as one type of infringement of reproductive freedom, and such infringements are presumed null and void unless the State satisfies the super-strict standard of scrutiny described above.

It is worth noting that under subsection 3 of the initiative, the State has to justify its health regulations by meeting the tests for "compelling interest," but the woman and her abortionist do not. The woman's "autonomous decision" need not be consistent with "widely accepted clinical standard and evidence-based medicine," as the State's health regulations must.

Missouri voters should vote "no" on the initiative to preserve the State's ability to make health and safety regulations in favor of women.

If the proposed state constitutional amendment is adopted, the current Missouri statute that limits doing or prescribing abortions to physicians will be endangered. The prospect of nullification arises from the presumption of invalidity and super-strict scrutiny that are created in subsection 3, as explained above.

Pro-abortionists already assert that there is a shortage of physicians who are willing to perform abortions, especially in rural areas.[14] They will argue that limiting abortions to physicians may well be considered as creating a "delay" of, or "interference" with, the "right to reproductive freedom." That would make the existing physician-only statute void because it would conflict with the new constitutional amendment. Thus the initiative represents a potent threat to the continued validity of the physician-only statute.

Subsection 3 puts the physician-only law[15] at risk without any description in the initiative on who else may do abortions. The broad term, "health care professionals," appears only in subsection 4, describing who will pass judgment on whether an abortion after "Fetal Viability" "is needed to protect the physical or mental health of the pregnant person." The initiative lacks any statement on what qualifications this person must have.

Physicians' assistants, advanced practice registered nurses,[16] and certified nurse-midwives[17] are likely to be first to seek a declaration by the courts that the physician-only statute is unconstitutional. One of those associations has adopted a formal policy calling for certain types of abortions to be added to the scope of certified midwives' practice.[18] If the initiative is approved, certified nurse-midwives will probably invoke it to declare that the physician-only laws are void as to them.

The logic of the initiative proceeds further. Should clinical psychologists be allowed to prescribe abortions? What happens if a woman insists on having an unlicensed midwife perform an aspiration abortion? Or what if she insists on using old- time folk remedies prepared by a lay person to induce an abortion at home?[19]

We are assured by an attorney quoted in the St. Louis Post-Dispatch article that the State would have a "compelling interest" in providing regulations that legitimately seek to protect the health of people receiving care. However, the article contained no mention about the three conditions of "compelling state interest" as defined in the initiative. The third condition, respecting a woman's autonomous choice, is one of the most important provisions in the initiative. It makes a woman's choice of practitioner a greater priority than State licensing requirements. Under the initiative, she has just as much right to choose an unlicensed midwife or a purveyor of folk remedies as she does to select one of the State's licensed professionals.

Note that the language of the initiative does not require the woman to prove safety and consistency with clinical standards for her choice to count; only the State must do that in connection with its restrictions.

Ultimately, the initiative provides no assistance in answering whether unlicensed practitioners should be allowed to perform or prescribe abortions. In the initiative, the best answer to the question, "Who else must be allowed to serve as an abortion health professional according to a woman's choice?" is, "Who knows?” It could be anyone the woman herself wants. Missourians should say "no" to non-physician abortions.

In subsection 5 of the proposed amendment we find the following language: "Nor shall any person assisting a person in exercising their right to reproductive freedom with that person's consent be penalized, prosecuted, or otherwise subjected to adverse action for doing so." On its face, this language is quite clear: it is a broad, all-embracing grant of immunity from any "adverse action" for assisting a woman to obtain an abortion. That presents a huge problem for patients who may be wronged by negligence or reckless conduct of physicians and other health care professionals.

Does the phrase, "adverse action," include lawsuits for damages arising from malpractice? Almost every person who has been sued for damages will find it easy to answer "yes, of course." The filing of a lawsuit is obviously an action adverse to the defendant who is sued. In fact, malpractice suits may often constitute the most adverse of all civil actions because of the probable hit to a professional's reputation if word gets around that the lawsuit has been filed.

A spokesperson for the initiative's proponents has claimed that the language, "adverse action," was only directed to preventing criminal charges or other penal sanctions to be filed against abortion providers. That claim is not consistent with the actual language of subsection 5. If it covered only criminalization or being penalized for assisting an abortion, it would have used such language as "shall not be penalized or prosecuted," and no more. But the subsection's language does not stop there; it adds to "penalized" and "prosecuted" the phrase, "or otherwise subjected to adverse action for doing so." The plain language of the subsection, therefore, clearly prohibits any "adverse action," not just penalties and prosecutions.

It is telling that two of the lawyers contacted by the St. Louis Post-Dispatch, including a St. Louis attorney who defends against health care malpractice suits, stated that the language of subsection 5 is ambiguous. Their statements reflect that the language is indeed susceptible to the meaning that abortionists will be immunized if the proposed amendment is adopted.

Should citizens abandon women by removing all possibility of obtaining redress for any injuries committed by the negligence of those who participate or assist in abortions? Missourians should reject such an outrageous proposal.

The pro-abortion movement, aided by several state governments that are managed by liberal Democrats, has begun an all-out war against Pregnancy Resource Centers (PRCs, also called CPCs--Crisis Pregnancy Centers). The PRCs have become very effective across the country.[22] The Attorneys General of New York and California have formed an alliance with at least 14 other state Attorneys General as well as with private abortion organizations to coordinate efforts to put PRCs out of business. Their legal grounds are false. One such ground is refusing to make referrals for abortion.

Attorney General Rob Bonta of California wrote an "Open Letter"[23] dated October 23, 2023, in which he complained,

CPCs also generally will not even refer for abortion services. Referrals are “often used in medical care to ensure patients have access to specialty care as needed.” Providing referrals for necessary healthcare when the provider will not, or is not able to, provide that care is a crucial part of the standard of care. [Footnotes omitted.]

Pro-abortion organizations and their professional or academic allies display deep- seated animosity toward CPCs. Here is how Planned Parenthood (the national umbrella office) describes them:

Crisis pregnancy centers (also called CPCs or "fake clinics") are clinics or mobile vans that look like real health centers, but they're run by anti- abortion activists who have a shady, harmful agenda: to scare, shame, or pressure you out of getting an abortion, and to tell lies about abortion, birth control, and sexual health.[24]

Remember, if the amendment is adopted, it will likely be in place for decades. We cannot rely on pro-life conservatives to occupy the office of the Missouri Attorney General during all that time. When the uncertainties of politics finally result in a pro- abortion Democrat as the Attorney General, we may expect that he or she will be working with private parties and other Attorneys General to put PRCs out of business. He or she may even refuse to perform his or her duty to defend the laws of Missouri that support PRCs.

The targets for such litigation, for instance, will likely include such statutes as those forbidding using state Medicaid funds for abortions, protecting the conscience rights of medical personnel, and forbidding giving assistance in abortions (e.g., in making abortion referrals for girls).

Consider how these statutes will be treated if the abortion proponents claim the statutes interfere, delay, or restrict the "right to reproductive freedom": They will be presumed invalid, and to overcome that presumption, the State will need to satisfy the super-strict scrutiny standard. In view of the current war against PRCs and the new legal world that the amendment would create, one may well foresee that the fight to defend against mandatory referrals for abortion by PRCs will be long and hard if the proposed amendment is adopted.

Missourians should reject this attack on PRCs.

Ultrasound videos of unborn children often have a dramatic effect on the decision of women whether to go through with an abortion.[25] "Seeing is believing," it is said, and ultrasounds of the unborn bear it out.

Missouri's informed consent requirements for abortion require abortionists to provide the opportunity for women to view real-time video ultrasounds of their unborn children and to review certain written materials that describe the growth and development of unborn children. Women have the choice to view or not view the ultrasound and materials.[26]

There are good health reasons as well as policy reasons for these requirements. ThriVe St. Louis, one of the centers that offer free and confidential ultrasounds to women by licensed medical professionals, suggests they are needed to confirm that a woman is pregnant and to check whether the child is developing within the uterus so as to spot an ectopic pregnancy. [27] They are beneficial for the health of pregnant women.

The purveyors of abortion habitually deny that the unborn child is nothing but "tissue" or "a blob of cells." Ultrasounds prove them wrong. The proposed amendment would nullify these health and informed consent requirements along with the other health and safety laws that "delay" an abortion that were mentioned in Part 4.1. It is a regression that the people should reject.

Medicaid is a joint federal-state enterprise in which the federal government provides most of the money and sets most of the rules. States who enter the Medicaid program (and all have done so) must pay a share of the Medicaid funds for their state and are allowed only certain leeway in setting rules.

Congress enacted the Hyde Amendment in 1976 to keep federal Medicaid and other federal social service funding from being used for abortions. Some states followed the federal lead and outlawed using state money for abortions. Abortionists cried foul and took their case up to the Supreme Court. The U. S. Supreme Court ruled that the U. S. Constitution was not violated by either the federal government (under the Due Process clause) or the state governments (under the Equal Protection clause)[33] that the right to obtain an abortion did not carry with it a right to have the government pay for an abortion, just as the right of free speech does not carry with it a right to pay for publishing a person's words.

Calls for Congress and state legislatures to compel Medicaid coverage of abortions for all Medicaid-eligible patients have never ceased. President Biden and his party dramatically increased the pressure to expand coverage soon after he was inaugurated, but the Hyde Amendment and similar provisions survived.[34]

The Hyde Amendment does not cover all federal funds, but only those appropriated for the Departments of Labor, Health & Human Services, Education, and related agencies. The largest single covered agency by expenditures is the Medicaid program operated by DHHS. In that regard, note that the Hyde Amendment only covers the federal funds provided to the Medicaid program, not state funds.

State constitutions and laws may have provisions regarding state funds that differ from federal restrictions on the use of federal funds. The proposed "Right to Reproductive Freedom" amendment has such broad language that it would open the door to forcing Missouri's state government to pay for abortions and for other procedures that are connected with reproduction.

This may well follow because pro-abortion lawyers will argue that in Missouri, some people cannot easily find the money or the means of travel to obtain an abortion. They will assert that the laws that obstruct the State from paying for abortions "delay" and "interfere with" poorer women's "reproductive freedom." The new super-strict standard of review, combined with the initial presumption that such laws are invalid, will make defending against such lawsuits quite difficult.

For all of the reasons mentioned in this paper, the initiative should be turned down.

Missourians for Constitutional Freedom (MCF)

MCF appears to be the primary force behind this petition that is attempting to make it a Constitutional right to kill the unborn.

According to MCF's website they are a statewide coalition of organizations and concerned citizens working to ensure all Missourians have the power to make decisions about our own reproductive health care – including abortion, birth control, and miscarriage care – without interference from politicians.

According to the Missouri Secretary of State's website, MCF was founded on May 30th, 2023 by Michael Pridmore and Kim Williams under Charter Number N001692962.

On March 25, 2024 Michael Pridmore changed the registered agent to Chris Grant.

On August 20th, 2024 Tori Schafer (their President) filed the organization's annual registration report with the following individuals:

• Officers
• President: Tori Schafer
• Her listed address appears to be the same as the Missouri ACLU:
• 314-652-3114
• 906 Olive St
  Suite 1130
  St. Louis, MO 63101
• Per the MO ACLU site, Tom Bastian is listed regarding all media inquiries:
253-330-1704
tbastian@aclu-mo.org
• Secretary: Emily Wales
• Treasurer: Michael Pridmore
• Board of Directors
• Mallory Scwarz
• Richard Muniz
• Kayla Reed

I've looked for a contact number for the organization. The only number I have uncovered, thus far, is Chris Grant's place of employment. Chris Grant is a partner at Schuchat, Cook & Werner. His office number is 314-732-1127

Should I find better contact info I will update this page.

Below is a list of endorsements and partners of the MCF:

• Abortion Action Missouri
• Access MO
• ACLU of Missouri
• American Association of University Women – Missouri
• Central Reform Congregation
• Congregation B’nai Amoona
• Congregation Shaare Emeth
• Faith HEALS
• Greater Kansas City Women’s Political Caucus
• Heartland Alliance for Progress
• Inter-Faith Committee on Latin America
• League of Women Voters of Missouri
• Missouri Family Health Council
• Missouri Healthcare Professionals for Reproductive Rights
• Missouri Jobs with Justice
• Missouri State Conference of the NAACP
• Missouri Workers Center
• National Council of Jewish Women St. Louis
• National Women’s Political Caucus St. Louis
• Planned Parenthood Great Plains Votes
• Planned Parenthood Great Rivers Action
• PROMO
• Sierra Club
• St. Louis Doula Project
• The Fairness Project
• WEPOWER
• Women’s Voices Raised for Social Justice

I cannot believe there are this many people and organizations that want to fight to be able to kill the unborn. Pray for them.