Michigan Is Hiding A Children’s Constitutional Right To Genital Amputation In Its Abortion Amendment

Margot ClevelandOctober 12, 2022

In less than one month, if Proposal 3 passes, children will have a right under the Michigan constitution to walk into one of Planned Parenthood’s 12 so-called “gender affirming” facilities in the state and, without parental knowledge or consent, obtain puberty blockers. And with Planned Parenthood of Michigan promising “gender affirming” care “via telehealth in the coming months,” Michiganders’ kids won’t even need to leave their house to obtain these sterilizing drugs.

Passage of Prop 3 will also give boys a constitutional right to be castrated and girls the right under Michigan’s constitution to be sterilized by way of a hysterectomy or the removal of their ovaries — all without their parents’ consent.

Deceptive marketing by Planned Parenthood and far-left politicians, such as Gov. Gretchen Whitmer, hides this reality from Michigan voters, leading Prop 3 to be uniformly referred to as “the abortion amendment” even though the expansive language of the proposed constitutional amendment reaches far beyond abortion. And on abortion alone, notwithstanding proponents’ claims that “passing this amendment simply restores the same protections that Michiganders had for five decades under Roe v. Wade,” Prop 3 goes far beyond the controlling Roe-Casey precedent: If passed, the constitutional amendment would create an extreme regime in Michigan of abortion on demand, at any time, for any reason, without informed or parental consent, and paid for by taxpayers.

The expansive and legalistically worded language of Prop 3, crafted by Planned Parenthood and left-wing backers, however, extends beyond abortion to create a constitutional right to several aspects of what transgender activists call “gender-affirming care,” despite it being neither affirming nor caring. And Prop 3 extends that right to all individuals, including children.

This is not merely a political point, and it is not a worst-case-scenario argument based on how some liberal activist judge or justice might interpret Prop 3. This reality flows from the plain language of Prop 3 and rests on general legal principles of constitutional construction.

It’s Right in the Text

Here is the pertinent language Prop 3 would etch into the Michigan constitution as Article 1, Section 28, with the key language underscored:

“(1) Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care. An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means. …

(2) The state shall not discriminate in the protection or enforcement of this fundamental right.

* * *

(4) For the purposes of this section:

A state interest is “compelling” only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.

* * *

(5) This section shall be self-executing….

Prop 3 Applies to Men and Women AND Boys and Girls

By its express terms, Prop 3 applies to “every individual” and guarantees an “individual’s right.” The proposed constitutional amendment further provides that “the state shall not discriminate in the protection or enforcement of this fundamental right.”

As a matter of constitutional interpretation, then, the rights guaranteed by Prop 3 would be rights that both adults and children possess as “individuals,” and the rights apply equally to males and females.

This proposal represents a huge demarcation from controlling Michigan law, under which minors must have parental consent to obtain medical treatment or receive prescription medications, with the only current exception being the judicial bypass provisions governing minors seeking abortions. Specifically, Michigan law currently provides that to obtain an abortion, females under the age of 18 must have the written consent of one parent or legal guardian, but the law allows a girl to seek permission for an abortion from a judge, called a “judicial bypass.” A court must grant a judicial bypass if the judge finds either that “the minor is sufficiently mature and well-enough informed to make the decision regarding abortion independently of her parents or legal guardian,” or “the waiver would be in the best interests of the minor.”

In the context of abortion, Prop 3 guts Michigan’s requirements for either parental consent or a judicial bypass, first by declaring that the amendment applies to all “individuals” and second by expressly providing that “the state shall not discriminate in the protection or enforcement of this fundamental right.” Treating females under 18 differently than those 18 or over is a textbook example of discrimination.

Section 4 of the amendment further cements the reality that minors must be treated equivalent to adults for purposes of the rights Prop 3 would establish. That section of the proposed amendment expressly limits the justifications allowed for regulating abortion or the other rights Prop 3 would inscribe in the constitution.

Under Section 4, the state may only regulate abortion and the other rights covered by the proposed constitutional amendment if it is necessary to “protect[] the health of an individual seeking care,” and “does not infringe on that individual’s autonomous decision-making.”

The rights of parents do not matter; Mom and Dad have no rights. And even the health of the girl does not matter because, under the plain language of the amendment, the state’s interest cannot “infringe” on the “individual’s autonomous decision-making.”

This legal analysis flows straight from the plain language of Prop 3, but case law from other states where a state constitutional right to abortion exists confirms this analysis. For example, in Alaska and Florida, courts have declared parental consent and parental notification statutes unconstitutional. And courts in California, Massachusetts, and New Jersey have struck parental consent statutes.

Prop 3’s grant of such “autonomous decision-making” is not limited to abortion, however. Rather, the plain language of the proposed constitutional amendment provides that the right to “reproductive freedom,” “entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to … sterilization … or infertility care.”

Under Michigan law currently, minors cannot be chemically or surgically sterilized (or rendered infertile) without their parents’ consent, and even then most physicians would refuse to sterilize a minor — except in the case of transgender-identifying patients.

The modern medical community has embraced the transgender ideology that teaches that human beings can be born “in the wrong body,” and that the appropriate treatment for such individuals consists of making their bodies appear to conform to their “internal sense” of gender.

The first step in such wrongly named “gender-affirming” medical response consists of prescribing puberty blockers to children. Puberty blockers, at a minimum, render children temporarily infertile by preventing them from maturing sexually, and a longer-term use renders them sterile. The surgical procedures used under the guise of “gender confirmation” — castration, hysterectomy, and the removal of ovaries — likewise sterilize the patients.

In fact, it is this very destruction of children’s future fertility and the medical rendering of them sterile that has led to several states banning the use of puberty blockers and surgical “gender confirming” procedures on minors. For instance, in Iowa, the Legislature made these legislative findings to explain its proposed ban on puberty blockers and surgical procedures that sterilize children:

Puberty blockers prevent gonadal maturation and thus render children taking these drugs infertile. Introducing cross-sex hormones to children with immature gonads as a direct result of pubertal blockade is expected to cause irreversible sterility. Sterilization is also permanent for those who undergo surgery to remove reproductive organs[.] … For these reasons, the decision to pursue a course of hormonal and surgical interventions to address a discordance between an individual’s sex and sense of gender identity should not be presented to or determined for children who are incapable of comprehending the negative implications and life-course difficulties resulting from these interventions.

But in Michigan, if passed, Prop 3 guarantees children the right to “make and effectuate decisions about all matters relating to … sterilization,” and without “discrimination,” giving boys and girls the right to obtain puberty blockers and surgical sterilization without parental notice or consent.

If passed, Section 4 of the proposed constitutional amendment will further guarantee that the Michigan Legislature cannot interfere in transgender minors’ decisions to obtain puberty blockers or surgical “gender reassignment” through castration, removal of ovaries, or a hysterectomy. That section, as excerpted above, provides that the state may only regulate such procedures for the limited purpose of “protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine,” and then, only so long as it “does not infringe on that individual’s autonomous decision-making.”

But the “accepted clinical standards of practice” by the supposed “mainstream” medical organizations is, at a minimum, to provide puberty blockers to children, with a steady movement toward the cash cow that is surgical interventions for minors.

Planned Parenthood Targets Kids One Way or Another

Again, these conclusions flow directly from the plain language of the proposed constitutional amendment. But here the public would be wise to note two significant facts: Planned Parenthood Advocates of Michigan helped lead the ballot initiative to amend the Michigan constitution through the passage of Prop 3, deceptively described as the “Reproductive Freedom for All” amendment, and Planned Parenthood now represents “the second largest provider of ‘gender-affirming hormone therapy.’” In fact, less than two weeks ago, Planned Parenthood launched an ad marketing puberty blockers to minors.

What Planned Parenthood and its extremist political partners don’t want publicized, however, is that a “Yes” vote for Prop 3 will not merely make abortion-on-demand, for any reason, at any time, and without informed or parental consent the law of Michigan: It will guarantee that children have an unfettered “right” to “transition” by obtaining puberty blockers and surgical sterilization, parents be damned.

With less than one month to go before Michiganders cast their final ballots, little time remains to give proof to the left’s lie that Prop 3 is about codifying Roe. It is not. It is about sacrificing the children of the state — both born and unborn.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.