ACLU calls for ending Michigan parental-consent law for underage abortions

• Voters guaranteed access to abortion under the Michigan Constitution in 2022
• State law still requires parental consent for underage people who seek abortions — about 700 each year, according to a new report
• The report calls for an end to that law, framing it as humiliating and the decisions within it arbitrary

Each year, about 700 underage people must get a parent’s consent or a judge’s order to obtain an abortion in Michigan.

That’s according to a new report that calls for an end to the 1991 law requiring a parent’s or guardian’s consent for people under age 18 to get an abortion. The consent requirement forces some young people to face abusive parents and others to go to court to obtain a “judicial bypass” waiver instead.

That court process is “invasive, distressing, traumatizing, and often arbitrary,” according to the authors of the report “In Harm’s Way: How Michigan’s Forced Parental Consent for Abortion Law Hurts Young People.”

Related:

• Sept. 6, 2023: Michigan Democrats get to work on abortion restriction repeals
• Sept. 14, 2023: Michigan abortion bills take spotlight at packed legislative hearing
• Nov. 21, 2023: Whitmer signs pared-down abortion access bills in Michigan

The 37-page report by the ACLU of Michigan, Human Rights Watch, and the Michigan Organization on Adolescent Sexual Health is largely based on interviews with health-care providers, attorneys who have represented clients seeking judicial waivers of Michigan’s parental consent and advocates for reproductive health.

“I think a lot of people don't question this law, because they think that it makes perfect sense — that a parent would want to be involved in their child's abortion decision,” Jo Becker, advocacy director of the children’s rights division at New York-based Human Rights Watch, told Bridge Michigan.

The report shines a light on “some unrecognized, but serious harms that the law creates” for underage people who must face unsupportive parents or strangers in court, she said.

While most already involve a parent or guardian in their abortion decision, each year about 100 of those youth opt instead for judicial bypass, authors said.

Those young people “often fear abuse, alienation, or being forced to continue a pregnancy against their will,” according to the report, in which providers say that some parents ask doctors to withhold pain medication for young people’s procedural abortions,” according to authors.

The report quotes one attorney who said some clients had a “history of a parent throwing them out, beating them up, CPS [Michigan’s Children’s Protective Services] was involved, and they were afraid their parents would go off on them again if they found out they were pregnant.”

In court, they must face “the whims of judges who can make highly subjective determinations on their maturity and interests.”

“The irony of this law is that young people have to prove to a judge that they're mature enough to make an abortion decision, and yet the law doesn't test a young person's maturity to bear a child and raise a child,” Becker noted in the interview with Bridge earlier this week.

The edges of abortion access

Each year between 2016 and 2021, judges denied permission to at least one young person in Michigan. In 2022, judges denied seven young people’s petitions, according to the report.

The report lays the groundwork for yet another fight over reproductive rights in Michigan — something set into motion when voters approved Prop 3 in 2022, enshrining the right to an abortion in the Michigan Constitution.

Opponents had argued that the Reproductive Freedom for All measure would invalidate existing abortion regulations, including the parental consent law for minors that lawmakers approved in 1991. At the time, Citizens to Support MI Women and Children said the amendment, “is not about protecting existing rights, but smuggling a radical proposal into the constitution that would repeal or drastically alter dozens of state laws.”

The 2022 measure passed, setting off a flurry of legislative moves that led to the repeal of several abortion restrictions: the state’s so-called “partial-birth abortion” ban that barred an abortion procedure typically used late in pregnancies; a 1931 law that criminalized prescribing abortion medication; and various regulations and building codes for abortion facilities that have been criticized for making it more difficult to open new clinics.

But repealing parental consent was notably absent from the final package, setting up another Michigan fight as the edges of abortion access continue to change throughout the nation.

“Abortion providers and advocacy organizations have openly threatened removal of this important protection,” Barb Listing, then-president of Right to Life of Michigan, said about parental consent at the time, according to a statement. “More concerning, we have heard this intention echoed in the halls of our state legislature,”

On Thursday, Right to Life of Michigan’s legislative director, Genevieve Marnon, called the parental consent report “wildly out of step” with Michigan values.

“Children under 18 are required to be in the care of adults for a reason – this advocacy piece throws common-sense to the wind to instead drive a political agenda that is wildly out of step with Michiganders,” she wrote in an email to Bridge Michigan.

Parental consent has always been a particularly thorny issue, said Barb Flis, who as founder of Parent Action for Healthy Kids, has spent more than a quarter-century facilitating tough discussions among young people, parents, schools and health providers, often around sex education.

In these discussions, even the most steadfast parents and schools may begin to acknowledge sex among young people and will shift from abstinence-only education to discussions about birth control and sexually-transmitted infections. Yet, the conversation often stops at hypotheticals about abortion, she said.

“It's even hard for me to take out the emotion of the abortion (discussion) and just look at the nuts and bolts. What was the purpose of the legislation? It was to protect youth,” Flis said.

The question, then, is does the law do that? she added.

“Can we legislate that every kid that is born gets an adult in their life who really cares and connects with them? We can't legislate that,” she said.

Ideally, parents need to have open, honest and supportive conversations with their children, she said: “Those young people have a lot to say.”

The report authors did not seek out interviews from young people who went through judicial review, citing “potential risks to their privacy and safety.”

But even after that much time leading to difficult discussions, “I don’t know,” Flis said, asked about whether Michigan should have a parental consent law. “It’s so murky.”