Hawley claims Missouri abortion amendment will ‘mandate’ trans surgeries. Will it?

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Sen. Josh Hawley paced the stage in front of a cross shaped lectern at the Cultural Impact Conference in Ozark, and issued a warning to the crowd of Missouri anti-abortion activists.

The constitutional amendment to eliminate Missouri’s abortion ban on the ballot this November wouldn’t just stop at abortion, Hawley claimed, it would go even further. It would protect gender-affirming surgeries for transgender Missourians.

“The amendment explicitly says it’s not limited to abortion,” Hawley said. “It says it will mandate constitutionally, all reproductive health services, and that includes transgender treatments for minors.”

The amendment does not mention transgender treatments or gender-affirming care. It lays out a “right to make and carry out decisions about all matters of reproductive health care, including but not limited to prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.”

Hawley is using the line that says “not limited to” to tie the amendment to a politically unpopular issue — gender-affirming care for transgender children. Gender-affirming care for minors is currently banned in Missouri.

“These people aren’t stupid who write this stuff,” Hawley said. “They know how to write abortion language. Look at Florida’s referendum, it’s concentrated solely on abortion. Ours is huge.”

Mary Ziegler, a law professor at the University of California at Davis, said that while abortion restrictions and transgender care are sometimes legally connected, it’s typically because legal opposition to both usually relies on arguments about sex discrimination, not because people view gender-affirming surgery as reproductive care.

“I’ve never seen anyone argue that gender-affirming care is reproductive health care, in part because gender-affirming care doesn’t really, I mean, I guess you could argue that it makes people unable to reproduce,” Ziegler said. “But it’s not usually something that an obstetrician-gynecologist would deliver.”

Missourians for Constitutional Freedom, the group of abortion-rights activists that initiated the ballot measure, dismissed Hawley’s argument as a distraction.

“Anti-abortion politicians will say anything no matter how outlandish to distract from the public health crisis they have created in Missouri when they banned abortion,” said Tori Schafer, an attorney with the ACLU in a statement.

“This is a false narrative being pushed by politicians using scare tactics to divide Missourians and distract us from what this amendment is about: protecting the right to abortion and letting Missourians make their own healthcare decisions.”

A legal argument

Hawley isn’t the first to tie gender-affirming medical care to abortion. After the U.S. Supreme Court overturned Roe v. Wade, politicians in some states, like Alabama, argued the decision gave legal permission for their state legislatures to ban gender-affirming treatment.

Alabama’s ban is part of a larger campaign to limit access to gender-affirming care in conservative states across the country. At least 26 states have outlawed gender-affirming care for minors, including Missouri, which bans access to puberty blockers, hormones and gender-affirming surgeries.

Many of those laws have been challenged in court and this fall, the U.S. Supreme Court will hear a case that challenges a ban in Tennessee to determine whether states can restrict access to gender-affirming care.

The arguments focus on the equal protection clause in the constitution, saying that it singles out transgender children because children who do not identify as transgender are still able to get access to similar care.

Hawley said progressives have attempted to link reproductive care with transgender care and Boston Children’s Hospital uses the term “transgender reproductive health” on its website.

But while activists may tie the two together, Ziegler said, those arguments haven’t appeared in court rulings.

“All of the things we usually think of as reproductive are distinguishable from gender affirming care,” Ziegler said. “And I haven’t seen a court define gender affirming care as reproductive health care.”

If the Supreme Court upholds Tennessee’s ban, it would leave the decision on whether to restrict access to care up to state lawmakers and state courts – putting more weight on Missouri’s constitution and the abortion rights amendment.

Ziegler was dismissive of the idea that Missouri courts would broaden the abortion rights amendment to include gender-affirming care – particularly when there are already several specific examples of reproductive care listed in the amendment.

“You have to ask yourself, well, who’s on the Missouri Supreme Court and what are the odds that they’re going to be the first in the nation to say that reproductive health care encompasses gender-affirming care?” Ziegler said.

A political argument

Polling has shown that a majority Missourians support the abortion amendment. An August poll conducted by St. Louis University and the British polling firm YouGov found that at least 52% of Missourians support the amendment.

A year earlier, the same pollster found that a majority of Missourians oppose allowing minors to have gender-affirming surgery or to take gender-affirming medication.

The disconnect in popularity between the two issues could help explain why conservatives like Hawley are trying to tie abortion policies to gender-affirming care.

“If you can’t convince people that they agree with you on the abortion piece of it, then you change the subject,” Ziegler said.

Hawley’s claim comes as his Senate campaign has increasingly focused on transgender children. The last two ads launched by his campaign accused his opponent, Democrat Lucas Kunce, of supporting “a radical trans agenda.”

One ad featured Riley Gaines, a former swimmer at the University of Kentucky who has become a staunch opponent of allowing transgender athletes to compete in sports that match their gender identity. Another claimed Kunce backs “extreme transgender policies.”

“Josh Hawley’s seeing this race tightening, he’s even telling his donors,” said Connor Lounsbury, a senior adviser to Kunce. “So now, he claims there’s ‘mandated sex change surgeries’ behind every corner. No one’s buying it.”