While the vast majority of minors who get abortions in Michigan have a parent or guardian’s consent, each year about 100 of them seek a judicial waiver to bypass Michigan’s parental consent law instead.
And every year, a very small number of those requests are denied, according to a new report from Human Rights Watch, the ACLU of Michigan, and the Michigan Organization on Adolescent Sexual Health.
“It's forcing a young person to give birth against their will,” said Kylee Sunderlin, a judicial bypass attorney in Michigan and a legal director at If/When/How, a national reproductive justice organization.
“Denying an order just says, ‘No, you can't make this decision on your own.’ It doesn't say, ‘I'm going to magically give you a parent you feel safe to disclose this with, who will consent on your behalf.’ There's no alternate process that this young person could go through. They are entirely reliant upon the judge to be able to get this care.”
The report also represents a renewed effort by some abortion rights advocates to repeal the state’s parental consent law — something even Democratic leaders in the Legislature have said would be politically risky. And abortion rights opponents say the parental consent requirement has broad support among Michigan voters.
“Children under 18 are required to be in the care of adults for a reason — this advocacy piece throws common-sense to the wind to instead drive a political agenda that is wildly out of step with Michiganders,” said Genevieve Marnon of Right to Life of Michigan.
Most minors get parental consent in Michigan
Michigan is one of 15 states where abortion isn’t banned that requires minors to get a parent or legal guardian's consent, according to KFF Health News.
About 700 minors get abortions in Michigan each year, according to the most recent state data.
And about 85% of those get written permission from a parent or legal guardian, as required by the state law, according to the report.
But those who don’t get parental consent may have a range of reasons, said Jo Becker, advocacy director of the children's rights division at Human Rights Watch, including being estranged from their parents or in foster care. Others “may fear being kicked out of the house or being subject to emotional or physical abuse. They may be concerned about a permanent rupture in their relationship with their parents," Becker said.
(The law also forces some teens to involve unsupportive parents, according to multiple healthcare providers quoted in the report. Dr. Sarah Wallett, the medical director of Planned Parenthood of Michigan, told the report’s authors that some parents ask her to withhold pain medication for their child. “Sometimes a teen comes in with a parent, and the parent is clearly upset. The parent wants me not to provide pain medication for the procedure. ‘They should have to feel all of this. They got themselves in this situation.’”)
Alternatively, teens can seek a waiver from a judge, who can grant permission for an abortion if they deem the minor is “sufficiently mature and well-enough informed to make the decision regarding abortion independently of her parents or legal guardian,” or if the “waiver would be in the best interests of the minor,” according to the law.
Denials are rare, but process is "intimidating"
Only a small handful of those waiver requests get denied. In recent years, there are usually only one to three denials per year in Michigan, although there were seven denials in 2022.
Yet even when judges do grant parental consent waivers, it can be daunting for minors to navigate the complicated legal process, Sunderlin said.
“We have no concept of how many young people actually need to access this procedure, and decide not to [seek a waiver] because it's too intimidating,” Sunderlin said.
Two of Sunderlin’s clients requested judicial waivers after the death of a parent, she said. In one case, the judge asked Sunderlin’s client “questions about what type of contraception she was on,” Sunderlin said. “‘Was she using multiple methods? Was she planning to get on birth control?’ ... Really invasive questions, on top of just saying, ‘My parent just died. That's why I'm standing here in front of you today.’”
Other attorneys say they’ve witnessed similar encounters.
“One judge would say, ‘I’m granting the order, but I want to make some comments. My sister was adopted. What a wonderful thing it is to have a baby adopted out. The happiest hearings I have in my court are when people are adopting a baby,’” said an attorney identified in the report as Nicholas T.
Another judicial bypass attorney in the report described a judge who “would grant the petition, but then encourage the young woman to consider alternatives. She’d talk about all the parents trying to have children who can’t, but 'you have this gift.'"
Most Michiganders support parental consent laws, abortion rights opponents say
Even as Democrats managed to repeal other abortion restrictions with the Reproductive Health Act last year, they didn’t attempt to overturn the parental consent law.
“Unfortunately, during the passage of Prop 3, we saw a lot of disinformation and outright lies about what the current law is around parental notification, and what a removal of that would look like,” House Speaker Pro Tempore Representative Laurie Pohutsky (D-Livonia) said in September. “So unfortunately, we are having to do a lot of education both with constituents and frankly even with some of our own members about what is actually happening and what the repeal of that law would mean.”
Right to Life of Michigan released polling last year showing about 70% of Michiganders support the state’s parental consent laws. It’s popular even with “61% of pro-choice voters and 60% of voters who said they voted yes on Proposal 3 last fall,” according to the Michigan Catholic Conference.
“The organizations who published this advocacy piece and their political allies believe they know what is best for children, not parents,” Marnon said via email Thursday. “They are actively seeking to remove parents from one of the most important decisions a minor girl could face, one that everyone acknowledges will have a lifelong impact regardless of the decision.”
But on Tuesday, Governor Gretchen Whitmer seemed to signal she’d be open to signing legislation that repeals parental consent, noting it was initially part of earlier versions of the Reproductive Health Act, prior to the 2023 legislation.
“I can tell you it was a part of the original package, and I was advocating for the whole package to get to my desk,” Whitmer said on Michigan Public’s Stateside this week.
