Billboards with the words “STOP Child Gender Surgery.” Pamphlets warning about endangering minors. “PROTECT PARENT RIGHTS” plastered on church bulletins.
As voters in nine states determined whether to enshrine abortion rights in their state constitutions, opponents used flawed arguements of parental rights to try and undermine support for the ballot proposals.
The issue of parental rights and the potential for a constitutional amendment specifically addressing those rights raised significant concerns about equality and the distribution of legal protections.
Advocates for a parental rights amendment often argue that parents should have the primary authority to direct their children’s upbringing, education, and health without undue interference from the state. Those same advocates also support, often violently, for the state’s total authority to control the reproductive rights of women.
Establishing such nebulas rights for parents constitutionally would quickly elevate the legal status of parents over individuals without children, creating a privileged class based solely on the choice to procreate.
One primary concern is that such an amendment could enshrine parental status as a basis for acquiring legal rights beyond those available to other citizens. By constitutionally guaranteeing specific rights to parents, there is the risk of creating a hierarchy in which those with children have more autonomy or legal protections than those without.
The approach might suggest that parents’ interests are more valuable or deserving of protection simply due to their familial status. For example, a constitutional parental rights amendment could restrict or supersede public education policies, potentially limiting non-parental voices in decisions that impact communities. That could marginalize those without children, especially since many education policies and resources affect all members of a community, not only families with children.
A constitutional amendment emphasizing parental rights may also conflict with existing laws designed to protect children, especially in cases of neglect or abuse. Currently, children’s rights are sometimes in tension with parental rights, particularly regarding education, health, and well-being.
A constitutional amendment that strengthens parental rights could make it more difficult for the state to intervene in cases where children’s welfare might be compromised. This potential outcome raises the issue of prioritizing parental preferences over children’s safety and well-being, as well as over public welfare.
The measures do not mention gender-affirming surgeries, and legal experts say changing existing parental notification and consent laws regarding abortions and gender-affirming care for minors would require court action.
But anti-abortion groups hoping to end a losing streak at the ballot box have turned to the type of language many Republican candidates nationwide are using in their own campaigns as they seek to rally conservative Christian voters.
“It’s really outlandish to suggest that this amendment relates to things like gender reassignment surgery for minors,” said Matt Harris, an associate professor of political science at Park University in Parkville, Missouri, a state where abortion rights are on the ballot.
Since the U.S. Supreme Court eliminated constitutional protections for abortion, voters in seven states, including conservative Kentucky, Montana, and Ohio, have either protected abortion rights or defeated attempts to curtail them.
“If you can’t win by telling the truth, you need a better argument, even if that means capitalizing on the demonization of trans children,” said Dr. Alex Dworak, a family medicine physician in Omaha, Nebraska, where anti-abortion groups are using the strategy.
Tying abortion-rights ballot initiatives to parental rights and gender-affirming is a strategy borrowed from playbooks used in Michigan and Ohio, where voters nonetheless enshrined abortion rights in the state constitutions.
Both states still require minors to get parental consent for abortions, and the new amendments have not yet impacted parental involvement or gender-affirming care laws in either state, said David Cohen, a law professor at Drexel University.
“It’s just recycling the same strategies,” Cohen said.
In addition to Missouri and Nebraska, states where voters are considering constitutional amendments this fall are Montana, Arizona, Colorado, Florida, Maryland, Nevada, and South Dakota.
Missouri’s abortion ballot measure has especially become a target. The amendment would bar the government from infringing on a “person’s fundamental right to reproductive freedom.”
Governor Mike Parson and U.S. Senator Josh Hawley, both Republicans, have claimed the proposal would allow minors to get abortions and gender-affirming surgeries without parental involvement.
The amendment protects reproductive health services, “including but not limited to” a list of items such as prenatal care, childbirth, birth control and abortion. It does not mention gender-affirming care, but Missouri state Senator Mary Elizabeth Coleman, a Republican and lawyer with the conservative Thomas More Society, said it’s possible that could be considered reproductive health services. Several legal experts say that would require a court ruling that is improbable.
“It would be a real stretch for any court to say that anything connected with gender-affirming care counts as reproductive health care,” said Saint Louis University law and gender studies professor Marcia McCormick. She noted that examples listed as reproductive health care in the Missouri amendment are all directly related to pregnancy.
Granting constitutional protections to parents specifically could further alienate those without children, reinforcing stigmas and biases against single people, the child-free by choice, or those unable to have children.
By elevating parental status constitutionally, society could imply that parenting is the ultimate or most valued form of civic engagement, inadvertently minimizing the contributions of those who contribute to communities in other ways.
Civic duties, such as paying taxes, volunteering, and participating in governance, do not require parenthood, yet such an amendment would suggest that parental contributions to society deserve exceptional constitutional protection, a principle that does not align with a fair and inclusive democratic society.
A parental rights amendment could set a problematic precedent of granting constitutional rights based on personal identity or family status, a notion that could open the door to other forms of preferential rights.
By making family status a constitutional criterion for additional rights, society risks endorsing a hierarchy that is both divisive and exclusionary, moving away from the idea that rights and protections should apply equally to all citizens.
As for parental consent for minors’ abortions, she pointed to an existing state law that is written similarly to one the U.S. Supreme Court found constitutional, even before Roe v. Wade was overturned.
Most states have parental involvement laws, whether requiring parental consent or notification. Even many Democratic-leaning states with explicit protections for transgender rights require parental involvement before an abortion or gender-affirming care for minors, said Mary Ruth Ziegler, a law professor at the University of California, Davis School of Law.
A state high court would have to overturn such laws, which is highly unlikely from conservative majorities in many of the states with abortion on the ballot, experts said.
In New York, a proposed amendment to the state constitution would expand anti-discrimination protections to include ethnicity, national origin, age, disability and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.” The constitution already bans discrimination based on race, color, creed or religion.
The measure does not mention abortion, and experts say it might be more vulnerable to opponent’s attacks.
The Coalition to Protect Kids-NY calls it the “Parent Replacement Act.” But Sasha Ahuja, campaign director for New Yorkers for Equal Rights, said the measure “does not change the existing common-sense laws that are already on the books.”
Rick Weiland, co-founder of Dakotans for Health, the group behind South Dakota ‘s proposed amendment said it uses the Roe v. Wade framework “almost word for word.”
“All you have to do is look back at what was allowed under Roe, and there were always requirements for parental involvement,” Weiland said.
Caroline Woods, spokesperson for the anti-abortion group Life Defense Fund, said the measure “means loving parents will be completely cut out of the equation.”
Weiland said those claims were part of a “constant stream of misinformation” from opponents who have shown more regard for fertilized embryos than actually living individuals.
If this campaign strategy failed in Michigan and Ohio, why did anti-abortion groups lean on it for the November elections?
Ziegler, the University of California, Davis law professor, said abortion-rights opponents know they may be “playing on more favorable terrain” in more conservative states like Missouri or in states like Florida that have higher thresholds for passing ballot measures.
“Anti-abortion groups are still looking for a winning recipe,” Ziegler said.
