‘A Trojan horse’: how the right is using ‘parental rights’ to fight abortion ballot measures

A Maryland ballot measure to enshrine abortion rights in the state constitution is, a Maryland activist claims, a “Trojan horse to trick pro-choice Marylanders into voting away parental rights”.

Opponents of a New York referendum, which is meant to cement protections for abortion rights, have started calling it the “Parent Replacement act” and claim it would expand rights for transgender minors.

Josh Hawley, the Republican senator from Missouri, has said that his state’s ballot measure would “mandate constitutionally, all reproductive health services, and that includes transgender treatments for minors”.

In the two years since the US supreme court overturned Roe v Wade, support for abortion rights has soared. Seven states have voted on abortion-related ballot measures, and in every state, voters have sided with supporters of the procedure, including in deep-red states like Kentucky and Ohio. Now, in the runup to election day, 10 states are set to vote on their own abortion measures – and anti-abortion activists across the country are trying to disrupt that streak using the specter of “parental rights”.

These measures, they say, could strip parents of their right to make decisions for their children – an argument that, in the years since the Covid pandemic broke out, has become an increasingly potent weapon in US culture wars.

Legal experts say these claims are overblown.

“It’s a vast oversimplification of what’s happening,” said Nicole Huberfeld, a professor who leads the Boston University School of Law’s reproductive law program.

More than 30 states say minors cannot obtain an abortion without notifying a parent or obtaining their consent. If a state with such a law – called a “parental involvement law” – passes a measure expanding abortion rights, the law would not immediately be struck down, according to Huberfeld. Instead, a court would need to rule on the issue. And, although the exact wording of each measure would ultimately determine how it was interpreted, Huberfeld said: “I don’t see these issues as being real issues.”

She continued: “They are fear and confusion campaigns. There are efforts to try to confuse the people who will be voting on these ballot initiatives, to make it so that they don’t understand what they’re voting on.”

Meanwhile, because some forms of gender-affirming care can affect people’s ability to reproduce, opponents have suggested that measures to protect reproductive healthcare would also protect minors’ access to gender-affirming care. But experts say that it has not been firmly established that gender-affirming care legally falls under the banner of reproductive health.

“Even if you accept that it could have this wild, expansive meaning, there still are ways within the text of the amendment that allow the government to pass laws around this topic,” one law professor told the Missouri Independent after Hawley’s comments.

Nevertheless, touting these claims has become a go-to strategy in the anti-abortion playbook. Michigan and Ohio, which respectively passed abortion-related ballot measures in 2022 and 2023, were both hit with messaging around parental rights and warnings from anti-abortion activists that the measures would erase parental-involvement laws around abortion and gender-affirming care. Both states still require minors to obtain consent from their parents before undergoing an abortion. And while Michigan permits gender-affirming care for minors – and did so before the ballot measure passed – a judge recently upheld Ohio’s ban on it.

Kelly Hall, executive director of the Fairness Project, which is backing abortion-rights measures in several states, believes claims about parental rights are a calculated distraction.

“It does reveal that our opponents really do understand that the electorate is not with them on the core, fundamental issue of abortion,” Hall said. “There’s no other reason they would be trying to change the subject so dramatically.”

‘Florida invented this playbook’

The most heated and high-profile abortion-related measure of the election is playing out in Florida, which currently bans the procedure after six weeks of pregnancy – and is arguably the headquarters of the modern-day parental rights movement.

“Amendment 4 would remove the requirement for parental consent for minors seeking an abortion,” Ron DeSantis, the Florida governor, posted on X last week. “Amendment 4 would undermine the foundation of parental rights in Florida.”

He also shared an ad featuring Dr Grazie Christie, a radiologist, calling Amendment 4 “too extreme and not what it seems”. In the ad, Christie says: “Under Amendment 4 would make abortion the only medical procedure a minor could undergo without parental consent.”

Since the pandemic ignited debates around Covid safety measures in schools, the idea of parental rights has become a rallying cry among activists who claim government institutions are intruding on parents’ rights to make decisions for their children. Moms for Liberty, the far-right group that advocates for book bans and limiting discussions about race and LGBTQ+ identities, calls Florida home. The state also passed the nation’s first “don’t say gay” bill, which aims to block teachers from speaking about sexual orientation and gender identity. (A settlement later allowed teachers to talk about these topics as long as the discussion is not part of formal instruction.)

Now, Florida is a battlefield over Amendment 4, which would roll back the state’s six-week abortion ban. More than $70m has been poured into the fight over the amendment, which needs to garner 60% of the vote to pass – a threshold that no post-Roe abortion-related ballot measure has met.

“Florida did invent this playbook, and I’m hoping that this is a time where we get to put this playbook to bed,” said Lauren Brenzel, the campaign director of Floridians Protecting Freedom, the coalition spearheading the campaign for the amendment.

Floridians Protecting Freedom has sued Florida officials at least twice – once for attempting to block a TV ad in support of abortion rights and once over a state-run website that suggested that, among other things, Amendment 4 could “open discussions about the role of parental involvement in a minor’s decision to have an abortion”. Aaron Bos-Lun, the Florida-based deputy executive director of the abortion-rights group Men4Choice, said he’s recently been barraged by anti-abortion ads that talk about Amendment 4 and its alleged impact on Florida’s parental consent law requirements.

“When we canvass, when we talk with voters – whether that’s on the phones or at the doors – there’s definitely been an uptick of people who have heard some piece of misinformation about the ballot initiative,” Bos-Lun said.

Parental-involvement laws involving abortion have long been popular with American voters. In 2022, 70% of Americans said they supported laws requiring minors to notify their parents about their decisions to get abortions, including 57% of self-identified Democrats, the Pew Research Center found. Even since Roe fell, boosting support for abortion rights, activists have struggled to get even their allies in state legislatures to consider repealing them.

Amendment 4 explicitly declares that it “does not change the legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion”. Anti-abortion activists claim the amendment would permit Florida minors to only notify their parents that they want an abortion, not to obtain their consent, as Florida law currently requires.

But Floridians Protecting Freedom says the amendment does not aim to change Florida’s parental consent law. Louis Virelli, a professor of constitutional law at Florida’s Stetson University College of Law, agreed.

“Amendment 4 leaves enough space for courts to say: ‘Yes, legislature, you can regulate parental consent.’ That is a certainty,” Virelli said. “There is no good-faith argument that says it absolutely, unequivocally prohibits them.”

With parental rights being invoked in some of the United States’ biggest culture-war issues – abortion, LGBTQ+ rights, vaccines – Huberfeld sees a clear through-line.

“This is a new tool in the toolbox of anti-medicine, anti-public health campaigns,” Huberfeld said. “This is just another feature of how that’s playing out.”