Missouri’s Abortion Proposal Is Way More Radical Than It Sounds

Abortion radicalism is on Missouri’s ballot. Fresh off post-Dobbs victories in ballot referenda to enshrine so-called abortion rights in the constitutions of various red states such as Kansas, Kentucky, and Ohio, pro-abortion interest groups are campaigning for the ratification of Amendment 3, which would create a constitutional “right” to abortion in the Missouri Constitution.

As per usual, supporters of the amendment assert that theirs is the moderate position and that failure to pass the amendment will mean a complete abortion ban. But in reality, the amendment’s placid and deceptive language would force Missouri abortion laws to the extreme left. This effort must fail.

The ballot initiative asks Missourians if they want to amend our state constitution to “establish a right to make decisions about reproductive health care” — the inability to use the term “abortion” transparently is suspect — and have courts presume any “governmental interference … invalid.” 

Note that this language does not include any age restrictions. Further, establishing a fundamental right to abortion would force state courts to presume that any restriction on abortion, during any stage of pregnancy, is unconstitutional. Parental consent laws? Presumably unconstitutional. Parental notification laws? Same. 

On that basis alone, the amendment would allow abortionists to pressure minors into life-changing decisions with no outside counsel. More insidiously, this lack of qualification of the “right to reproductive health care” might shelter child abusers who coerce their victims into clandestine abortions from facing the justice that parental notification or consent laws assure in such cases. 

Further, the amendment prohibits the state government from “discriminating” in appropriation of state funds against those “providing or obtaining reproductive health care.” Read: State tax revenue will fund abortions. Thomas Jefferson wrote in the Virginia Statute for Religious Freedom, “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” Passage of Amendment 3 would mandate and perversely consecrate such violations of conscience rights in Missouri.

Those in favor of the amendment contend that its final clause, which allows abortion to be “restricted or banned after Fetal Viability except to protect the life or health of the woman,” means that late-term abortion could remain illegal in accordance with popular will. But that clause’s carveouts are wider than the entrance to an Ozark show cave. 

First, “Fetal Viability,” capitalized as a proper noun in the amendment as if it had a set definition, is a moving target. Viability is commonly defined as the point at which a baby might survive outside the womb and is usually estimated at 23-24 weeks, or near the end of the second trimester. But medical advances constantly push this boundary further toward conception.

When Roe v. Wade was decided in the middle of the last century, babies born before 24 weeks of gestation had virtually no chance of survival. Studies on early births in the United States, England, and Australia now show that about half of babies born in week 24 survive, while about a quarter survive when born at 23 weeks. Moreover, the baby’s chance of survival outside the womb depends on quality of care and myriad variables. As Dr. Rachel Fleishman wrote in an NBC News article in 2022, “Viability is not a line. It is not a concrete fact or a threshold or a date on a gestational calendar with absolute outcomes.” 

This raises an obvious problem: If “viability is not a line,” then it is not a judicially discernible question. Courts must then defer to medical experts in determining whether an abortion occurred after that amorphous threshold. To whom would courts defer? The abortion providers with a financial and institutional incentive to circumvent the provision. Ditto for the exception for the mother’s “health,” a word explicitly interpreted by the Supreme Court in the now-defunct Roe v. Wade majority opinion to include the mother’s physical and mental health.

Including an exception that broad has only one practical purpose: to surreptitiously prohibit any restrictions. In other words, the last clause of the amendment has been inserted to falsely assure voters that late-term abortion can remain broadly illegal. It is an insult to voters’ intelligence. 

The unconditional right to a taxpayer-funded abortion has no place in a just society. Creating such a bogus “right” on the supposition that no innocent third party exists is a poor substitute for actual compassion and assistance for mothers and families struggling with unplanned pregnancies.

There is no “right to do wrong,” as Abraham Lincoln said of slavery, at the heart of our fundamental social contract. The Supreme Court clarified that was still true of the U.S. Constitution in 2022. Conservatives across America should hope and pray that this is the people’s interpretation of Missouri’s Constitution in 2024. 

Nathan Richendollar is a 2019 summa cum laude graduate of Economics and Politics from Washington and Lee University in Lexington, Virginia. His work has also appeared in the Daily Caller, Foundation for Economic Education, Live Action, and the American Spectator. He lives in Southwest Missouri and works in the financial sector.