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By Thomas Jipping & Joseph Sturdy*
Abortion advocates are setting their sights on the states after the Supreme Court last year declared that the U.S. Constitution “does not confer a right to abortion.”
They are not only attacking pro-life laws under state constitutions, but they are also trying to change those charters to explicitly protect abortion.
Successful campaigns in Michigan, California, and Vermont and, now, a proposed state constitutional amendment in Virginia, show how this strategy will unfold, reaching far beyond anything that even Roe v. Wade had once provided.
Before the November elections, constitutions in six states explicitly prohibited abortion and those in 12 other states had been interpreted by the state Supreme Court to protect it. The passage of Michigan’s Proposal 3 reveals how abortion advocates will try to change the constitutions of other states.
The plan has several elements that, individually and especially together, signal a cultural revolution far beyond abortion. First, while Roe v. Wade invented a right “encompass[ing] a woman’s right to terminate her pregnancy,” Michigan’s Prop 3 creates a “right to reproductive freedom,” including “all matters relating to pregnancy” from contraception and sterilization to prenatal and infertility care.
Second, these constitutional amendment efforts are driven by the left-wing gender ideology that is sweeping the country. While the words “woman,” “women,” or “mother,” for example, appear nearly 100 times in Roe v. Wade, Michigan’s Prop 3 replaced them all with “individuals,” deleting the distinction between men and women.
The same transformation is occurring with federal legislation, such as the Women’s Health Protection Act. As recently as May 2019, this legislation’s purpose was to “protect a woman’s ability to determine whether or when to bear a child.” Two years later, the same House and Senate sponsors introduced bills which, though having the same title, no longer recognize women or children, but only “people who are pregnant.”
Third, in a number of cases, the Supreme Court recognized that minors’ “immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” As a result, “[s]tates unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy.” By recognizing only “individuals,” however, Prop 3 eliminates any recognition of these differences and interests.
Fourth, the Supreme Court in Roe v. Wade used words such as “child” or “fetus” (even “unborn children”) more than 60 times. The court acknowledged, in fact, that the presence of the unborn child makes abortion “inherently different” than other privacy rights, such as contraception, and that the state has an “important” interest in protecting prenatal life. Prop 3 brushes any such notions aside, giving no hint that another human being even exists.
Finally, Prop 3 immunizes from legal consequences anyone who helps a “pregnant individual” exercise the right to “reproductive freedom.” In other words, someone can persuade a 15-year-old girl to have an abortion, obtain contraception, or get sterilized—and help her do it—behind her parents’ backs.
Virginia’s House Joint Resolution 519, introduced on Jan. 11, has the same elements, declaring that “every individual has the fundamental right to reproductive freedom” that covers “all matters related to one’s pregnancy.” Neither “women” nor “unborn children” are to be found in this measure, even between the lines, and helping children get an abortion is protected from any “adverse action” of any kind.
Both Prop 3 and Resolution 519 say that this aid or assistance must be “with [the individual’s] voluntary consent,” but that’s empty rhetoric.
There is, of course, no way truly to determine whether a minor’s consent to something as grave as abortion is informed and properly considered. That’s why minors are barred from, by themselves, giving consent to so many less significant things—obtaining cellphone service, routine surgery (except abortion), opening a savings account, or obtaining a learner’s permit to drive a car.
Pretending like she can give that consent—when, isolated from her parents, the stakes are so high—will surely have tragic results.
This state constitutional amendment wave is already coming ashore. Don’t be fooled into thinking that this is about protecting in state constitutions the right to abortion that the U.S. Constitution no longer protects. To the contrary, this campaign is counting on that misdirection to achieve a much more radical cultural revolution.
*Thomas Jipping – Senior Legal Fellow, Center for Legal and Judicial Studies.
Joseph Sturdy – Spring 2023 Member of the Young Leaders Program at The Heritage Foundation.
This article is part of an agreement between El American and The Heritage Foundation.