Defending Bodily Autonomy Is Real Child Protection

A participant at the Reclaim Pride Coalition’s fifth annual queer liberation march in New York City on June 25, 2023.

Photo: Erik McGregor/LightRocket via Getty Images

This month, Ohio reproductive freedom advocates delivered 42 boxes of petitions — over 700,000 signatures — to state officials to put a constitutional amendment on the ballot. The proposed amendment guarantees every individual the right “to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion,” until fetal viability. It also prohibits the state from interfering with or penalizing “a person or entity that assists an individual exercising this right.” Both clauses contain exceptions for medical necessity. And neither limits these rights to adults.

Protect Women Ohio, an anti-abortion coalition that includes Ohio Right to Life and the Center for Christian Virtue, calls the proposal an “extreme anti-parent amendment” that will “permit minors to undergo sex change operations without their parents’ knowledge or consent and allow painful abortion on demand through all nine months.” A video in PWO’s multimillion-dollar ad campaign opens with a shot of a troubled-looking white girl. “Your daughter is young, vulnerable, online,” it begins. She could be “pushed to change her sex or get an abortion” and “you” — the parent — “could be cut out of the biggest decision of her life.” The Republican-dominated Ohio legislature has done everything it can to head off the reproductive freedom initiative, including calling a special election on a measure that would make it harder to amend the constitution.

In fact, the Ohio ballot initiative does not allow abortion up to the day of birth, and it does not mention trans care. Still, the opponents’ characterization is not entirely wrong. By recognizing a right — a fundamental, universal right — to reproductive autonomy, initiatives like Ohio’s do rein in the prerogative of parents, particularly hostile ones, to control their children’s decisions. The demotion of parental prerogative implies the assertion of young people’s bodily autonomy. And if youth have autonomy in reproductive matters, it follows that they are free to do other things with their bodies, such as bring their genders into concordance with how they feel. Blue-state politics have conformed to this logic. All the states that have safeguarded reproductive rights legislatively or constitutionally have also passed laws protecting LGBTQ+ youth.

That any lawmakers are venturing to eliminate the age of consent for abortion or gender-affirming care is a radical, and welcome, development. It’s unlikely they would have had the courage absent the abortion crisis created by Dobbs v. Jackson Women’s Health Organization and the trans panic manufactured by Ron DeSantis & Co.

In the ensuing legislative battles, both sides are charging the other with illogic or hypocrisy — or, as the Heritage Foundation put it, “utter madness” — regarding child welfare. But to focus on inconsistency is to miss the coherent worldviews the policies embody. These worldviews suggest answers to the more important questions: How do we balance children’s health with their bodily autonomy? How do we reconcile child protection with children’s rights?

When Maine Democrats approved a bill that permits trans minors to get treatment without parental consent, Republicans cried hypocrisy: The state requires parental permission to use a tanning bed or get a tattoo. Why not these “potentially life-changing decisions”?

Washington Senate Republican Leader John Braun released a statement with a similar message during debate over Senate Bill 5599, enacted this year to provide sanctuary and confidential gender-affirming care to homeless trans kids estranged from their parents. “Right now, [Democrats] are sponsoring a juvenile offender sentencing bill based on ‘the expansive body of scientific research on brain development, which shows that adolescents’ perception, judgment, and decision-making skills differs significantly from that of adults,’” he wrote. “It’s revealing how brain research matters to them when juveniles break the law, but not when they seek life-altering, potentially irreversible health care.”* Braun added that S.B. 5599 would “cause harm by driving a wedge between vulnerable kids and their parents.” As if the wedge had not already been driven.

The left can point a finger too. In Iowa, the governor signed a “fetal heartbeat” law protecting 6-week-old embryos and a law prohibiting “gender transition procedures” for minors. During the same session, a bill supported by multiple industry associations was introduced to lift restrictions on 14- and 15-year-olds working in meat coolers, industrial laundries, and factories. Arkansas passed one law requiring parental consent for “gender transition” and another eliminating parental permission for work.

Oregon’s Republican state representatives walked out for six weeks, preventing the quorum necessary to pass bills, over two Democratic proposals. House Bill 2002 guaranteed “every individual” — not every adult — “a fundamental right to make decisions about [their] reproductive health.” In that spirit, it eliminated parental consent for abortion at any age. The Republicans’ other bête noire was H.B. 2005, which, among other things, raised the age to buy a firearm from 18 to 21.

To end the impasse, the Democrats amended H.B. 2002 to stipulate that before prescribing abortion pills or performing a termination on a minor under 15, a health care provider had to get the approval of a second provider (there’s still no parental consent for anyone). The legislators also dropped the age requirement in the gun safety bill, scaling it back only to ban “ghost guns.” Both bills passed.

The Republicans were morally hypocritical — or bankrupt. As long as “Second Amendment rights” were secure, these child-savers were apparently OK risking first-graders being mowed down by mass shooters, most of whom are men under 21. But the Democrats didn’t exactly stick to their principles either. As parental surrogates, health care professionals are presumably less biased than the old white guys who’ve been dictating pregnant minors’ fate in judicial-bypass states. The second-provider rule might be excused as medically prudent or practically inconsequential. But it’s neither.

The regulation is what abortion advocates litigate against as TRAP laws: targeted restrictions on abortion providers. TRAP laws have nothing to do with protecting the patient and everything to do with harassing the provider — and, by extension, the patient. Dems claim to uphold the fundamental right of bodily autonomy. But they’re not averse to negotiating bits of it away when the body in question is under a certain age.

When it comes to getting legislation passed, it’s hard to avoid appearing like a hypocrite. But if you look more closely at the proposals from each side, a cohesive worldview begins to take shape.

The left’s efforts to expand reproductive autonomy and trans rights while restricting youth incarceration represent a libertarian progressive worldview: promoting freedom and opposing punishment. Policies like parental permission for tattoos, meanwhile, represent the sort of busybody statism the right legitimately derides — and liberals should desist from.

On the right, repressive “child protective” statutes controlling everything from drag performances to lessons about slavery would seem at odds with the deregulation of child labor. But as the feminist legal scholar Nan Hunter forcefully argues in The Nation, the two are interlocking elements of an anti-democratic, kleptocratic “new confederacy,” which could soon govern 140 million Americans. A third of the 24 states that have passed the worst anti-trans laws are also among the most boldly gerrymandered, she notes. “Parental rights” is shorthand for the attack on public schools, which is part of a concerted transfer of public money into private, often religious, hands. Anti-abortion, anti-trans, and “don’t say gay” laws and their vigilante enforcement mechanisms smuggle in “new surveillance techniques in local jurisdictions.” Retaliation against teachers’ unions for defending their own and students’ speech rights undermines unions, destroying the most reliable institution of workers’ economic advancement and hastening the upward distribution of wealth. “It is urgent to defeat extremist legislation,” Hunter concludes. “But it is no less urgent to build a longer-term political framework that fully integrates sexuality and gender issues with efforts to redistribute wealth downward, reversing the trickle-up effects of a half-century of neoliberal policies.”

In truth, everybody, including those who most cynically use children as political props, wants to protect children. From what, by whom, and by what means — there lies the rub. For conservatives, children need protection, but they don’t have rights; “parental rights” are paramount (except if the parents support their queer kids, don’t worship a Christian god, or are otherwise “woke”). Liberals and progressives proclaim the rights of the child. But while they want to protect children’s safety, they are ambivalent about defending children’s rights.

Democrats are not unanimous on the issue of parental notification for medical care. Like Oregon’s second-provider workaround for abortion, the Maine statute now allows trans kids to get treatment without notifying their parents or guardians but empowers medicine as the gatekeeper in their stead. Along with fearing harm from unsupportive parents, the minor must be diagnosed with gender dysphoria and undergo psychological counseling. Adults seeking gender-affirming care in Maine do not have to check these boxes.

And even while progressives grapple with the extent of minors’ right to bodily autonomy for abortion or trans care, there’s one bodily function that’s off limits: Nobody but nobody will risk political capital lowering the age of consent for sex. The result is ridiculous. In many states, a person legally exercising their right to end a pregnancy has broken the law getting pregnant. In Washington, where you can have an abortion at 15 without parental notification, the age of consent for sex is 16. In Oregon, where the age of sexual consent is 18, 15-year-olds can choose to be sterilized.

Roe did not predicate the constitutional right to abortion on the age of the pregnant person. The 14th Amendment — the one that should have undergirded Roe — guarantees equal protection under law to all persons, not all persons over the age of 12, 15, or 18. Bodily autonomy is a universal human right. It belongs to everyone.

Injustice to children often opens the door to injustice to adults.

Practically speaking, most things that are unhealthy for children are also unhealthy for adults. If tanning beds cause skin cancer, they should be outlawed to protect public, not just children’s, health. What is unjust for adults is also unjust for children, and injustice to children often opens the door to injustice to adults. Minors were the first — along with people dependent on government-funded medical care — to lose the rights won in Roe. Once parental consent was adopted around the country, other restrictions more easily followed suit. Recently, attacks on trans students and student athletes — couched as parental rights to protect their own kids — have metastasized into bans on gender-affirming care for all minors, and then for trans adults too. And, just as after Roe, a common instrument of restriction is the denial of Medicaid coverage for treatment.

But universality is an ideal, which resides in the real. Just as equity-promoting policies like affirmative action are needed to achieve the vision of racial equality, we cannot realize the vision of a universal human right of bodily autonomy without attending to the disproportionate risks and harms certain groups of people, both adults and children, face in trying to exercise it.

What endangers these adults also endangers their children. Children, moreover, are even more powerless than the least powerful adults. The institutionalized, people of color, and people with disabilities have long been subject to involuntary medical experimentation and eugenic sterilization. Given the histories of bodily coercion, a policy like Oregon’s allowing 15-year-olds to “elect” sterilization with “informed” consent seems naïve at best. (It’s ironic too, as reproductive justice, the basis of recent legislation, includes freedom from forced sterilization.) Progressive libertarianism is a defense of freedoms with progressive values intact, including the obligations to racial and gender justice and care of the vulnerable. Children are only as safe as the world around them.

The next battle will be over the oral contraceptive norgestrel, approved this month by the Food and Drug Administration for nonprescription sale in drugstores without age restrictions. Although the progestin-only “mini-pill” is safe and effective for almost everyone of reproductive age, its over-the-counter sale to everyone of reproductive age is all but certain to be challenged by anti-abortion forces.

Will the left defend teenagers’ freedom to purchase birth control without being carded? To protect minors from real, not manufactured, harms, we must fight for their right to bodily autonomy.

*It’s important to note that gender-affirming care, while life-altering, is usually reversible. Genital surgery on minors is vanishingly rare. Top surgery is more common, but on teens, not children, and among those teens, research finds that almost none experience regret. The most common treatment for younger kids, puberty-postponing medication, ceases to work if the person stops taking it and has no lasting effects.