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The politics of abortion aren’t especially ambiguous at this point: Most Americans don’t want a government ban. And while there’s a range of opinion on exactly when it’s OK to restrict access, or under what conditions, most Americans disapprove of the Supreme Court’s decision overturning Roe v. Wade in June.
The evidence is in the polls, in the rejection of that anti-abortion ballot initiative in Kansas, and in the victories for Democrats who support abortion rights in a series of special elections. But for political professionals, the most telling sign may be the way that opponents of abortion rights are acting.
They are desperate to shift political conversation away from reproductive rights. When they can’t do that, they try to obfuscate either their own position or that of abortion-rights supporters.
It’s been going on for a while. Here, for example, is an article from August about Republican candidates scrubbing their websites of references to abortion.
But this week opponents of abortion have rolled out a new campaign, one that seeks to exploit anxiety over LGBTQ rights and what conservatives have been calling “grooming.” It alleges that a key ballot proposal, in a key state, would let children get gender-affirming care without parental consent.
And “alleges” is the right word, because it’s based on a far-fetched argument that one prominent legal scholar told me was “absurd.”
A Battle Over Abortion Rights In Michigan
I know about this because it’s happening in my home state, Michigan, where reproductive rights are especially central to November’s midterm elections. A big reason for that is Proposal 3, which organizers have called the “Reproductive Freedom for All” initiative.
The ballot proposal would amend the state constitution by adding language to protect reproductive rights, effectively preventing future lawmakers from passing major abortion restrictions and ― more urgently ― nullifying a 1931 law that makes abortion illegal in nearly all cases.
The 1931 law is not currently in force (i.e., abortion remains legal in Michigan) because lower courts have already blocked prosecutors from bringing cases, pending a ruling from the state Supreme Court on whether the Michigan Constitution already protects abortion.
Incumbent Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats and both fierce supporters of abortion rights, have said they would use whatever authority they have to prevent its enforcement.
But there’s no way to know how the state Supreme Court will rule, just as there’s no way to know whether Whitmer or Nessel will win reelection next month. Polls were picking up comfortable leads in August and September. Now they are finding closer races for both.
Proposal 3 has generally fared well in polls, but a recent one found support down to just 50% amid a burst of advertising by the initiative’s opponents. As of last week, those opponents had spent nearly $23 million, while Proposal 3 supporters had spent a little less than $16 million, according to figures collected by the tracking company AdImpact.
The advertising isn’t so surprising, and if the margins are shrinking that wouldn’t be a surprise either. Change frequently makes voters nervous, and the ads try to exploit that by suggesting the amendment would, for example, invalidate existing safety regulations for abortion.
The proposal’s supporters have disputed that claim ― acknowledging that the amendment, like any other, leaves some rule for judicial interpretation but noting that it explicitly allows for regulations when the state can show a “compelling” interest. Safety regulations would seem to clearly qualify, at least as long as they’re really about safety.
A Bold, Tendentious Claim
But that’s nothing compared with the new ad, which intersperses images of young children with injectable drugs and argues that Proposal 3 would allow kids to get gender-affirming care without consulting their parents.
Here’s the full script:
“This drug blocks a child from going through puberty. 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 it. They call it ‘reproductive freedom.’ We call it extreme. Proposal 3 opens up Pandora’s box. Only you can close it. Vote no on Proposal 3.”
The anti-Proposal 3 ad focused only on puberty blockers. But other critics have taken it even further. In an article for The Federalist, a conservative publication, senior legal correspondent Margot Cleveland wrote earlier this month that passing Proposal 3 would “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.”
The argument in the article and the ad rests on two central contentions. One is that the amendment’s references to “sterilization” and “infertility care” would extend rights to gender-affirming care, because gender-affirming care can affect fertility. The other is that language applying the amendment’s protections to “all individuals” would render age distinctions meaningless, giving minors the right to gender-affirming care without parental involvement.
“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,” wrote Cleveland, who is also an adjunct law professor at the University of Notre Dame. “This reality flows from the plain language of Prop 3 and rests on general legal principles of constitutional construction.”
Some Very Important Context
These are bold claims. And while I don’t have the credentials to judge their merits, Leah Litman does.
Litman co-hosts the progressive “Strict Scrutiny” podcast and is a law professor at the University of Michigan. That last part is important because she’s been paying close attention to this proposition and published a short analysis of it earlier this month.
The argument about age, Litman told HuffPost, ignores the fact that courts have long understood that minors don’t have the full rights of adults. She cited several examples, including the Second Amendment, which says nothing about age. Even so, she said, judges have ruled repeatedly that the government has more leeway to restrict gun ownership and use by children.
“Even though the text of those amendments [like the Second Amendment] don’t distinguish ― in their language ― between adults and minors, they are still understood to allow states to enact more restrictions over minors rights than adults,” Litman wrote in an e-mail. “That just reflects a basic principle of constitutional law that isn’t stated in the words of the amendments: States have greater latitude to restrict the rights of minors than the rights of adults.”
Litman went on to say that courts have traditionally applied this same logic to reproductive rights, even before the decision in Dobbs v. Jackson Women’s Health Organization. “States couldn’t enact spousal consent requirements, but they could enact parental consent requirements,” she wrote. “That’s the regime ― or the protections of rights ― that Proposal 3 reinstates.”
Some Words That Matter
As for the idea that Proposal 3 protections would somehow extend to gender-affirming care, Litman said, opponents are taking words like “sterilization” out of context, which is not the way judges would interpret them.
Litman pointed out that the amendment specifically defines “reproductive freedom” as having “the right to make and effectuate decisions about all matters relating to pregnancy.”
“Put another way: the measure is about decisions/actions/procedures whose nature or purpose is to affect someone’s reproductive capacity or state,” she said. “That doesn’t describe gender affirming care; you don’t receive gender affirming care in order to alter or bring about a pregnancy; you don’t receive gender affirming care for reproductive capacity ― you receive it in order to align your physical sex characteristics with your gender identity. It’s not about pregnancies.”
As an example, Litman noted that the presence of toxins in water could affect pregnancy or lead to sterilization. “No one thinks this amendment says anything about a right to clean drinking water, even though that will have effects on people’s fertility,” she said.
Litman isn’t the only one making these arguments. Eli Savit, the prosecutor for Washtenaw County in southeastern Michigan, has called the new ad “simply, flatly, unequivocally false.”
“There is absolutely nothing in the text of the Reproductive Freedom for All initiative that mentions or supersedes parental consent,” Savit said during a press conference that the amendment’s supporters held Friday.
Savit is a Democrat. He’s also a former Supreme Court clerk, as is Litman, and he thinks the claims about gender-affirming care are just as egregiously dishonest.
“This word ‘sterilization’ ... is obviously, in the context of matters relating to pregnancy, meant to protect things like tubal ligations or vasectomies, which are personal choices that people should be able to make without interference by the state,” Savit said. “So again, this idea that it has anything to do with gender identity, gender-affirming care is just nowhere to be found in the text the amendment.”
These are complex arguments, at least in the context of a 30-second advertisement. It’s an open question as to how many persuadable, undecided voters who see the TV and video spots will even take the time to think through the issue, or to hear these counterarguments.
But that’s precisely why these ads and the many millions of dollars behind them can be so effective. They create uncertainty and confusion, which could be enough to defeat a proposal that substantial majorities would otherwise support on the merits.