Advocates aim to remove onerous parental consent laws for minors seeking abortions

Five months after the decision by the U.S. Supreme Court that overturned Roe v. Wade in June 2022, voters in Michigan passed Proposal 3, enshrining the right to reproductive freedom in the state Constitution.

A year later, Gov. Gretchen Whitmer signed the final bill of the Reproductive Health Act, repealing statutes that made providing an abortion a crime and applied medically unnecessary regulations to reproductive health clinics.

None of the legislative changes addressed a state law that requires parental consent for minors to obtain an abortion.

A new report from the American Civil Liberties Union of Michigan, Human Rights Watch, and the Michigan Organization of Adolescent Sexual Health says that Michigan’s consent laws, in addition to restricting access to abortion, also cause harm to minors.

Michigan’s parental consent law took effect in 1993. It requires that anyone under 18 have written consent from a legal guardian or parent in order to obtain an abortion.

The report summary notes that while the majority of minors receive permission for an abortion from parents or guardians, others are not able to for a variety of reasons. Some fear a parent could become abusive, others say parents could force them to keep a pregnancy or threaten to refuse financial support, and some say they simply do not have access to a parent due to “illness, death, or incarceration.”

“These laws make us also feel ashamed like the world doesn’t value us as human beings or that we’re not worth enough,” Ashmi M., 16, said.

If a minor cannot get consent, they can file a petition for a judicial waiver, or “judicial bypass.” Once a petition is filed, the court schedules a hearing and a judge decides if the minor can terminate the pregnancy.

Kylee Sunderline, who works in Michigan, is the legal support director the national organization If/When How. She told the Michigan Independent that as someone who works with young people who don’t have the option of getting parental consent, she knows that obtaining a waiver can be difficult.

“The bypass process itself is really onerous and harmful,” Sunderlin said. She explained that even though a court is required to schedule a hearing on a bypass within three days, the process can be slow.

“The best option for them, and the option that the vast majority of people use to end their pregnancies in the country, is medication abortion,” Sunderlin said. “And that’s only up to 11 weeks. So when we’re talking about a difference of maybe five to nine days in terms of talking to a lawyer, getting it filed, having the hearing, getting the order, waiting the 24 hours to do the [state-mandated] counseling, it can make an enormous difference in terms of being able to access medication abortion.”

According to the report, without parental consent and the ability to obtain a waiver, minors must prove to the court that they are “sufficiently mature and well-enough informed” — something that is not defined by law. Left in the hands of judges, such a determination can be arbitrary.

Sunderlin said that in the Michigan courts where she practices, even in cases when judges are kind and understanding, they can ask questions that can be painful and invasive to the minors seeking the waivers.

“One of the judges always asks questions about abortion regret, always, and I have to prepare the young people for it. And there’s no scientific backing or evidence, and it is just completely rooted in abortion stigma,” Sunderland said, adding that even if the judge grants the order, minors are often left feeling shame. “This is stigmatizing. It exceptionalizes abortion care as a health care issue.”

Merissa Kovach, the political director of the ACLU of Michigan, told the Michigan Independent that its strategy is to use public education to debunk false information around the issue.

“What we’re doing with this report is taking a step back and showing the real human cost of having such a dangerous policy on the books and trying to illustrate that and be able to have these conversations outside of the heat of an electoral cycle, ballot initiative legislation, so that we can come together and hopefully solve this through policy solutions,” Kovach said.

According to the Guttmacher Institute, 36 states require either parental consent or parental involvement for a minor to obtain abortion care.

“The research has shown, and in this report as well, that the majority of young people involve a parent regardless of legal requirements,” Kovach said.

She added: “Minors already have a legal right to consent to a full range of reproductive health care options, including a full range of decision-making power when it comes to pregnancy, whether to keep a pregnancy, to have a C-section. The only form of reproductive health care that they do not have full decision-making power over, without the forced consent of a parent, is the decision to have an abortion in Michigan.”

Correction April 3: A previous version of this story said If/When How is a Michigan-based organization.