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Opponents of a proposal on the ballot in Michigan this fall to add an explicit right to abortion to the state constitution argue it encompasses a right to gender-affirming care for minors
The group behind Proposal 3 denies the amendment has anything to do with gender-affirming treatment or procedures. The proposal would establish a right to “reproductive freedom” that “entails the right to make and effectuate decisions about all matters relating to pregnancy.”
Legal and medical experts say that a future court is unlikely to interpret the amendment as providing minors access to gender-affirming care without parental consent.
Opponents of Proposal 3 — a ballot measure to enshrine abortion rights in the Michigan Constitution — call it a "Pandora’s box" that goes far beyond restoring the national right to an abortion lost when the U.S. Supreme Court overturned Roe v. Wade this summer.
The proposed constitutional amendment — which appears on the Michigan ballot as "Proposal 22-3" — would allow children to undergo "gender change therapy without parental consent," Citizens to Support MI Women & Children claims in a tweet. Citizens to Support MI Women & Children is a coalition campaigning against Proposal 3 that includes prominent abortion rights opponents, including Right to Life of Michigan and the Michigan Catholic Conference.
One television ad from the coalition shows boxes of a medication called Triptorelin with fluid dripping from the needle before scanning over the faces of young children. "This drug blocks a child from going through puberty," the narrator says. "It’s the first step in gender change therapy. Clinics prescribe this drug in Michigan. If Proposal 3 passes, minors as young as 10 or 11 will be able to receive this prescription without the consent of their parents or their parents even knowing."
If voters adopt Proposal 3 in the upcoming Nov. 8 midterm, it would add about 300 words to the Michigan Constitution. The amendment contains no explicit reference to gender-affirming care or parental consent.
"Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy," the amendment states. It provides some examples of what the right to reproductive freedom includes: "prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care."
An attorney for Reproductive Freedom for All — the group behind the proposed constitutional amendment — cast doubt on opponents’ assertions that Proposal 3 would affect gender-affirming care.
"They’re spending an awful lot of time and effort talking about matters that do not relate to pregnancy which are outside the scope of this proposal," Steve Liedel said during a recent news briefing. He said Reproductive Freedom for All has asked stations to stop airing the ad from Citizens to Support MI Women & Children that claims Proposal 3 would allow children to obtain prescriptions for puberty blockers without their parents’ consent or knowledge.
Liedel said that "the status of minors that haven’t even entered puberty and are not capable of becoming pregnant until they have completed puberty has nothing to do with the rights addressed by the proposal."
Christen Pollo, a spokesperson for Citizens to Support MI Women & Children, defended the ad’s claims.
"A constitutional right to ‘sterilization’ surely includes a right to be sterilized to align one’s sex and gender identity," she wrote in an email. "The majority of voters do not support a 12-year-old girl’s right to sterilization without her parent’s notice or consent. But that is the implication of giving this right to every ‘individual,’ no matter their age."
If Michigan voters adopt Proposal 3 a future court could, in theory, hear a legal challenge from a minor seeking gender-affirming care without their parents’ consent.
In such a case, courts also interpret the amendment’s text. That could boil down to two questions:
— Does the right to reproductive freedom protected by the amendment include gender-affirming treatments and procedures?
— If so, would the constitutional amendment bar parental consent requirements for minors seeking care?
Independent legal and medical experts answered no to both.
A court would consider what the amendment’s drafters intended when they wrote it. Because those backing the amendment have denied that it has anything to do with gender-affirming care, it’s unlikely courts will interpret it that way, according to Catherine Archibald, a University of Detroit Mercy law professor who specializes in LGBT legal issues and gender law.
Dr. Daniel Shumer is a pediatric endocrinologist at Mott Children’s Hospital in Ann Arbor. He is an expert in treating children with issues including hormone problems and puberty challenges and also focuses on transgender health.
He told the Free Press there is not a direct tie between sterilization and gender-affirming care, and parents remain crucial to health decisions that affect their children.
"Proposal 3 is unrelated to care for children and adolescents with differences in gender identity. Parents play a critical role in decision-making when it comes to gender-affirming care. Parental involvement, and consent, is required for hormone care in minors and passage of Proposal 3 will have no bearing on this," Shumer said.
He and Anna Kirkland, a lawyer and professor of women’s and gender studies at the University of Michigan, acknowledged guidance from the World Professional Association for Transgender Health. It’s considered the preeminent medical body for collecting evidence to establish best practices in the treatment of transgender patients.
The organization's standards of care specifically outline the crucial need for parental involvement.
"We recommend when gender-affirming medical or surgical treatments are indicated for adolescents, health care professionals working with transgender and gender diverse adolescents involve parent(s)/guardian(s) in the assessment and treatment process, unless their involvement is determined to be harmful to the adolescent or not feasible," the 2022 standards state.
The standards also note that while some care may prevent a patient from reproducing in the future, other care does not, and it’s crucial for patients to understand outcomes well before final medical decisions are made.
"Age has a strong, albeit imperfect, correlation with cognitive and psychosocial development and
may be a useful objective marker for determining the potential timing of interventions," the standards state.
Kirkland noted puberty blockers do not cause infertility, nor do they create "sterilization."
"Given this very recent and terrible history, of course sterilization would be mentioned in a list of reproductive freedoms that people need to control themselves rather than have the state control, and historically that has meant the right not to be sterilized coercively," she said.
Legal experts also argue that it’s far-fetched to interpret the right to "sterilization" in Proposal 3 as encompassing gender-affirming care.
Mae Kuykendall, a Michigan State University law professor who specializes in constitutional law, said the amendment "clearly confines the idea of sterilization to a concern about pregnancy," in an email. Transgender care doesn’t fit the bill, she said.
Leah Litman, a University of Michigan law professor focused on constitutional law who joined a brief asking the Michigan Supreme Court to put Proposal 3 on the ballot, called opponents' claims that Proposal 3 encompasses gender-affirming care "divorced from language."
"I am not familiar with any lawyer or any health care professional who looks at the word sterilization and thinks, ‘ah yes, that includes gender-affirming care,’" she said. "Even if it was encompassed in the right … you would still have greater latitude to restrict rights vis-a-vis minors."
Citizens to Support MI Women & Children has argued that the amendment would repeal parental consent laws.
An attorney with the ACLU of Michigan — one of the groups behind the Reproductive Freedom for All amendment — previously told the Free Press/PolitiFact Michigan that a future court could decide the fate of a Michigan law requiring those performing abortions on minors to obtain the consent of the minor’s parent guardian. The law also allows minors to petition a court, bypassing the parental consent requirement if approved by a judge.
Reproductive Freedom for All has since argued that Proposal 3 would leave parental consent requirements untouched if voters adopt it. Legal experts weighing in on the matter argue that parental consent laws in place regarding medical treatments for minors don’t conflict with the proposed constitutional amendment to enshrine a fundamental right to reproductive freedom in the Michigan Constitution. They expect parental consent requirements to survive legal challenges if voters adopt Proposal 3.
They point out that constitutional rights often don’t distinguish between the rights of minors and the rights of adults but that state and federal courts routinely allow lawmakers to establish different rules and regulations for children.
Litman gave an example: The U.S. Constitution includes the right to bear arms, but that doesn’t mean children can purchase guns.
Proposal 3 on its own doesn’t invalidate any state laws, including those regarding parental consent. That would require action by the judiciary or changes to laws currently in place by the Legislature to ensure they comply with the constitutional amendment.
Proposal 3 does not explicitly state that minors have a right to gender-affirming care without parental consent. The proposed constitutional amendment’s drafters deny that it provides such a right and legal experts don’t foresee a future court siding with opponents of the amendment who claim it includes an unfettered right for minors to access puberty blockers or gender-affirming surgical procedures without parental consent. Medical experts say that Proposal 3 does not touch on gender-affirming care that requires parental involvement.
The burden of proof lies with opponents to provide evidence supporting their claims based on current information. Instead, they rely on hypothetical conjectures about how the amendment might be interpreted. Opponents’ claim that Proposal 3 would allow minors to undergo "gender change therapy without parental consent" is not accurate.
Citizens to Support MI Women & Children, tweet, Oct. 18, 2022
Citizens to Support MI Women & Children, television ad, YouTube, Oct. 17, 2022
Citizens to Support MI Women & Children, "Coalition," website, accessed Oct. 28, 2022
Leah Litman, law professor, University of Michigan’s Michigan Law, phone interview, Aug. 11, 2022
Mae Kuykendall, law professor, Michigan State University’s College of Law, email, Aug. 11, 2022
Catherine Archibald, law professor, University of Detroit Mercy, phone interview, Oct. 27, 2022
Dr. Daniel Shumer, M.D., pediatric endocrinologist at University of Michigan Health C.S. Mott Children’s Hospital, phone interview, Oct. 26, 2022
Taryn Gal, executive director, Michigan Organization on Adolescent Sexual Health, email, Oct. 26, 2022
Anna Kirkland, professor of women's and gender studies, University of Michigan, Oct. 25, 2022
Reproductive Freedom for All, news briefing, Oct. 21, 2022
Christen Pollo, Citizens to Support MI Women & Children, spokesperson, emails, Oct. 26, 2022 and Nov. 1, 2022
Michigan Medicine, Adolescent Health Initiative, Michigan Confidentiality Laws, accessed Nov. 2, 2022
Michigan Mental Health Code, Act 258 of 1974, 330.1707 Rights of minor, accessed Nov. 2, 2022
The Network for Public Health Law, Consent for Care and Confidential Health Information, "Michigan Laws Related to Right of a Minor to Obtain Health Care without Consent or Knowledge of Parents," Oct. 2016
State Bar of Michigan, The Law for Minors, Parents, and Counselors, accessed Nov. 2, 2022
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