Fact check: Michigan Prop 3 would not allow ‘child sterilization without parental consent’

Legal expert weighs in on Proposal 3

(AP Photo/Matt Rourke, File) (Matt Rourke, Copyright 2021 The Associated Press. All rights reserved.)

Voters will have the opportunity to decide the future of abortion rights in Michigan during the general election on Tuesday, Nov. 8, 2022.

If Proposal 22-3 is approved by voters, it would establish a right to reproductive freedom in Michigan. There is a lot of misinformation on social media, in advertisements and in articles online. We’re working to clear up that misinformation.

A Local 4 reader sent us the following question:

The specific language from the proposal that the viewer is referring to is as follows: “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.”

There are some articles and political ads that claim children can receive gender-affirming care without parental consent, which they allege would make the children sterile.

“The commercial that’s airing suggests that the word ‘sterilization’ somehow has something to do with gender identity but that’s just obviously not true. Again, we’re talking about decisions related to pregnancy, and in that context, the word ‘sterilization’ is meant to encompass things like vasectomies or tubal ligations. Decisions people should be able to make without interference from the state,” Washtenaw County Prosecutor Eli Savit said in a video. “The Reproductive Freedom for All ballot initiative has nothing to do with gender identity or gender-affirming care. It covers decisions about matters relating to pregnancy. That’s it.”

While the Reproductive Freedom for All initiative has nothing to do with gender-affirming care, I thought we should take a look at what gender-affirming care actually is. A gender non-conforming person may seek medical treatment, hormone replacement therapy (HRT), change their names/pronouns or change their appearance.

Transgender children may seek to temporarily suppress puberty through medications. That is because physical changes caused by puberty can cause intense distress for many gender-nonconforming children. The medications can decrease the growth of facial and body hair, prevent voice deepening and limit the growth of genitalia. It can stop breast development and stop menstruation.

Planned Parenthood of Michigan does not prescribe puberty blockers or gender-affirming hormone therapy to people under the age of 18. Different healthcare and insurance providers have different policies when it comes to minors’ access to puberty blockers and HRT in Michigan. According to St. Louis Children’s Hospital, puberty blockers alone should not affect a child’s fertility.

According to the Michigan Organization on Adolescent Sexual Health, minors generally need parental consent for medical and surgical care in Michigan. “Generally, youth can access puberty blocker at age 16 or younger and can access hormone replacement therapy at age 18 and up,” MOASH said.

Not everyone who is transgender decides to transition. Some people choose to transition socially but not medically. Or they may choose to do a few surgeries, but not every surgery that’s available. The decision is very personal.

Law expert answers questions about Proposal 3

I reached out to the University of Michigan Law School, and law professor Leah Litman helped clarify some things regarding the proposal.

Question: If approved, would the proposal invalidate minor consent laws?

Answer: No. For rights that are protected by Prop 3 (like the right to an abortion or contraception), Proposal 3 reinstates the protections for those rights that were provided by Roe v. Wade -- namely, a state could only restrict a right if it had a compelling interest. But under Roe v. Wade (as well as basically every other constitutional amendment), minors don’t have the same rights as adults (or put another way: states have greater latitude to restrict minors rights than they do adults). For example, the text of the First Amendment doesn’t distinguish between minors and adults, and the Supreme Court has recognized that minors have First Amendment rights. Still, the Court has said states have great latitude to restrict minors’ speech than adults. Same under the Second Amendment: The text of the Second Amendment doesn’t distinguish between minors and adults, but court have recognized that states can restrict minors rights more than they can restrict adults. The same was true under Roe v. Wade -- that is courts held that states have greater latitude to restrict minors’ rights when they applied the exact same legal test that Proposal 3 creates (restrictions must further compelling state interests). Under that test, courts upheld parental/minor consent laws. Those are the rules Proposal 3 brings back.

Question: What are the current minor consent laws regarding gender-affirming care (hormone blockers, hormone replacement therapy)?

Answer: I am not aware of specific ones. But any laws would not be affected by Proposal 3 for two reasons: Proposal 3 does not grant a right to gender-affirming care (that is not a matter related to pregnancy). And Proposal 3 does not invalidate minor consent laws (for reasons explained above).

Question: Would minors be able to obtain abortions or gender-affirming care without parental consent and without the waiver of parental consent?

Answer: Absolutely not, and any suggestion that they could ignores basic principles of constitutional law, the language of Proposal 3, and two centuries of judicial precedent.

Learn more about minor consent laws

Michigan Medicine has a handout that provides more information about confidentiality and minor consent laws. You can view it in the PDF below. Remember, if proposal 3 passes it would not invalidate minor consent laws.

About the Author:

Kayla is a Web Producer for ClickOnDetroit. Before she joined the team in 2018 she worked at WILX in Lansing as a digital producer.