The politicking over a high-profile Michigan abortion ballot measure has been overtaken in the final weeks before the election by claims that it could open the door to allowing minors to get abortions or even undergo gender transition procedures without parental consent.
Proponents of Proposal 3, the Right to Reproductive Freedom Initiative, say it would amend the constitution to return to the precedent set under the recently struck down Supreme Court decision Roe v. Wade, which protected abortion access nationwide until fetal viability. It’s meant to override a 1931 state law held up in the court system that would make performing an abortion a felony in most cases.
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Opponents of the measure, however, say the language of the proposed amendment is vague and could extend abortion and reproductive rights far beyond the Roe framework. Most notably, they have run ads claiming that it is “extreme” and would allow minors to undergo gender change therapy without parental consent. Liberal proponents accuse them of lying as a way to attack a measure that has broad support.
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Karley Abramson, a research associate for the Citizens Research Council of Michigan, a nonpartisan public affairs research organization, said that the amendment’s effects would hinge on its interpretation by courts.
“We wouldn’t really have the answers necessarily, because a lot of this will depend on how the language of the amendment is then interpreted by courts,” said Abramson. “One of the potential ways that it is expanded is that at least beyond Roe, it covers a wide range of reproductive services.”
At the heart of the debate is that the measure outlines that every “individual” has a right to make decisions regarding prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, and miscarriage management.
Experts have varying opinions on whether the use of the word “individual” versus specifying an age would extend these rights to people under 18 years old. Some say it would almost certainly extend those rights to minors, while others say it is unclear, as states have greater latitude when it comes to restricting the rights of a minor rather than an adult.
“By not having any age limitation on there, that language naturally includes minors. So that means a teenager would be able to get an abortion without their parents’ consent or even their notification,” said John Bursch, senior counsel for Alliance Defending Freedom, a conservative legal advocacy group, and former Michigan solicitor general, who has opposed the measure. “In addition, it defines the fundamental right to reproductive freedom to include sterilization. So if you had a teenager who was seeking cross-gender sterilization or puberty blockers, those two could be obtained without parental notification or consent.”
Opponents such as the Citizens to Support Michigan Women and Children coalition allege that the amendment paves the way for minors to undergo gender transition without parental consent, including allowing minors to take puberty blockers, drugs that are used to delay puberty in adolescents, which they deem “the first step in gender change therapy.” The group claims it would put long-standing state parental consent laws in jeopardy and permit minors to receive abortions.
Leah Litman, a University of Michigan law professor and proponent of the ballot measure, says claims that the measure would give unfettered rights to minors are false, noting that while most constitutional rights apply to minors, such as the First Amendment, there is reason to believe that decisions made in federal cases allowing states to restrict rights given to minors would take precedent in this case.
“Most constitutional rights apply to minors as well,” Litman wrote in an email to the Washington Examiner. “It’s also a basic principle of constitutional law that states have greater latitude to restrict the rights of minors than they do for restricting the rights of adults. So just to take an example: States can’t generally prevent adults from publishing profane newspapers; but state schools can prohibit students from publishing profane school newspapers.”
Several legal experts told the Washington Examiner that the range of the measure, and whether certain rights are extended to minors, likely wouldn’t be answered until after the measure took effect.
University of Virginia law professor Naomi Cahn said that it’d be up to the state legislature to enact laws under the constitutional amendment, and those statutes would be reviewed by courts for constitutionality.
“If the ballot measure goes forward and is passed, it’s in the constitution, but it’s then up to the state legislature and courts to decide what that constitutional amendment actually means,” said Cahn.
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The proposal is one of five abortion measures before voters next month in Michigan, California, Vermont, Kentucky, and Montana and will be one of the first opportunities that voters have had to weigh in on abortion access following the Supreme Court overturning Roe in June.
