“You’ll shoot your eye out, kid”

I don’t think it undermines the Biblical truth that God establishes governments if we agree with the late humorist P.J. O’Rourke, who said that giving money and power to government is like giving whiskey and car keys to teenage boys. It’s where irresponsibility and risk meet opportunity and resources that makes the imagined outcomes so dire and predictable.

Now, picture Missouri’s Amendment 3 in the hands of lawyers from the American Civil Liberties Union. “It is an ACLU Christmas list,” Thomas More Society senior counsel Mary Catherine Martin says. Like the classic film A Christmas Story, where 9-year-old Ralphie’s list includes a Red Ryder BB gun, Amendment 3 is 450-plus words of reproductive rights–related legalese likely to send BBs ­ricocheting beyond the purported bull’s-eye of abortion.

Only the “fair ballot language” will appear before the voters, and it’s unlikely very many will make the effort to find, read, and understand the actual text they’ll be writing into the state constitution.

Missouri is among 10 states with abortion-related proposals on the Nov. 5 ballot, but Missouri’s is the most legally ambitious. It stands alone in specifying “the right to make and carry out decisions about all matters relating to reproductive health care.” Proposals in Arizona and Maryland provide for the ­“fundamental right” to abortion or reproductive freedom, and in New York for “reproductive healthcare and autonomy.”

Only Missouri uses the “all matters” language.

That’s highly significant. To understand constitutional amendments, you must think like a lawyer or a judge—because it’s in court where phrases such as “all matters relating to” will be litigated and state laws potentially struck down. “In statutory interpretation,” Martin told me, “a judge is not free to interpret the words as adding nothing. They have to add something to the scope of the amendment.”

To put it another way, a judge will have to consider “all matters” as adding something beyond the realm of traditional reproductive health. Because so-called gender-affirming care most often tinkers with a person’s organs that relate to reproduction, opponents predict that if Amendment 3 passes, a new class of plaintiffs will emerge: those who argue that medical interventions aimed at sex change are now constitutionally protected rights.

Mary Catherine Martin (center) talks to reporters after arguing in September at the Missouri Supreme Court to keep Amendment 3 off the ballot. Joe Barnas / Thomas More Society

It may not even take new plaintiffs. Even now, a lawsuit is challenging Missouri’s SAFE Act, which bars transgender surgeries or hormonal treatments on minors. Veteran pro-life lobbyist Samuel Lee told me: “That lawsuit would probably add this provision as part of their grounds to strike that down, so that a child—literally a child—could have gender transition surgery without parental notice or consent.”

How so? The Missouri amendment would elevate the new right above first freedoms like religion and speech. Again, think like a judge: Governments typically have the power to override fundamental rights if they can demonstrate “compelling governmental interests” achieved by the “least restrictive means.” Parental involvement laws fit here. But Amendment 3 takes the reproductive right further by adding that a com­pelling interest must not “infringe on that person’s autonomous decision-making.”

Martin says this “super right” is precisely what kicks parents out of their kids’ lives—legally speaking. “That means there can be no parental consent requirements,” she told me. “And notice how well concealed that is.” That’ll govern not only abortion; it would have to apply the right to transgender surgeries and administration of opposite-sex hormones. No wonder the ACLU of Missouri ignored my detailed inquiry—they’re hiding the ball.

Martin, a 2003 Harvard Law School graduate, describes the legal nerve center for the battle against Amendment 3 as her dining room table, strewn as it is with legal documents. This is another example of what it means to be outspent more than 25-to-1 by “Yes on 3” forces.

So they’ll have to fight it out at dining room tables and in churches. That’s where she and Sam Lee are most comfortable anyway. “We can’t compete financially, but we’re reaching voters by connecting Amendment 3 to broader issues,” Lee said. Both are insistent that—for reasons of ­strategy and reality—opponents not make this solely about abortion, which at the moment is popular, even in Missouri.

It’s difficult to believe that voters in a deep-red state with no single abortion business remaining would be leaning toward Amendment 3. It appears they really, really want that Red Ryder, regardless of the warning that “you’ll shoot your eye out, kid”—and perhaps not just an eye.