A battle over 317 words could decide whether abortion remains legal in Michigan.
Those words make up the proposed amendment that would enshrine abortion rights in the Michigan Constitution if the state’s elections panel certifies it for placement on the November ballot and voters approve it.
The U.S. Supreme Court overturned the landmark Roe v. Wade decision that had guaranteed a national constitutional right to an abortion for nearly half a century, leaving the legal status of abortions up to individual states.
Abortion is still legal in Michigan after courts have issued temporary orders barring enforcement of a 1931 ban on the procedure in response to lawsuits filed by Gov. Gretchen Whitmer and Planned Parenthood of Michigan.
Their legal challenges argue that the Michigan Constitution protects the right to an abortion. It is not clear that rulings on those pending lawsuits will ultimately side with those arguments.
But if the “Reproductive Freedom for All” amendment lands a spot on the ballot this November and voters adopt it, the Michigan Constitution would spell out an explicit right to abortions in the state.
The full ramifications of the amendment are unknown. As is often the case with changes to the Constitution, lawsuits and court rulings ultimately decide the exact meaning of particular phrases in an amendment and how to apply those words in an everyday context. State lawmakers could also craft legislation aimed at regulating the right to an abortion proposed in the amendment, which may themselves be subject to legal challenges.
The groups behind the proposed amendment — the American Civil Liberties Union (ACLU) of Michigan, Planned Parenthood of Michigan and the nonprofit Michigan Voices — characterize it as a way to resuscitate the rights previously protected under Roe.
“The Supreme Court made its ruling. Passing this amendment simply restores the same protections that Michiganders had for five decades under Roe v. Wade,” said Darci McConnell, a spokesperson for the Reproductive Freedom for All campaign.
Opponents disagree.
“It’s been written in a way to appear moderate when it is actually one of the (most extreme) policies on abortion that’s been presented in any state,” said Christen Pollo, a spokesperson for Citizens to Support MI Women & Children, a coalition opposing the amendment.
The Free Press spoke with advocates and critics of the amendment and legal experts to parse the language of the amendment and evaluate what its passage would mean for Michiganders seeking abortions.
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What does the amendment say?
The amendment proposes adding a “right to reproductive freedom” to the state constitution containing the following language:
“(1) Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.
An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.
Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.
(2) The state shall not discriminate in the protection or enforcement of this fundamental right.
(3) The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.
(4) For the purposes of this section:
A state interest is ‘compelling’ only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.
‘Fetal viability’ means: the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.
(5) This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of this section.”
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Would the amendment require pregnant minors seeking an abortion to obtain parental consent?
The amendment creates an unambiguous right for minors to seek abortions.
“Every individual has a fundamental right to reproductive freedom,” the amendment states.
“There is no question that minors are included in ‘every’ person but there can be some gradations in how the right can be exercised by a minor,” said Mae Kuykendall, a law professor at Michigan State University specializing in constitutional law.
“By comparison with an adult, the right of the minor can be subject to a degree of regulation to which adults are not subject,” she said.
Leah Litman, a University of Michigan law professor who specializes in constitutional law, noted lawmakers routinely create regulations of rights in the context of children.
“You have a right to a handgun,” Litman said. “That doesn’t mean a 10-year-old can buy a handgun.” She called Michigan’s current parental consent requirement “completely constitutional” under the Reproductive Freedom for All amendment.
John Bursch, the former Michigan solicitor general who has provided legal support for the coalition opposing the amendment, said that the amendment would likely nullify Michigan’s parental consent law. That law requires abortion providers to first seek consent from a parent or legal guardian before performing abortions on a minor or for a minor to petition a court to allow them to undergo the procedure.
Advocates of the amendment have offered different answers.
McConnell said that the amendment wouldn’t change Michigan’s laws on parental consent if adopted. But Bonsitu Kitaba, deputy legal director at the ACLU of Michigan, previously declined to weigh in on how the amendment would impact parental consent requirements in a June interview with the Free Press.
“We would have to ensure that those parental consent laws don’t unduly burden the constitutional right to abortion, to seek out contraception all of the protections that are in the Reproductive Freedom for All campaign,” she said. “I can’t talk about the legality of that right now because it’s not in front of a court. It hasn’t been passed yet, so that is a decision a court will have to make down the road.”
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Does the amendment create a fundamental right to an abortion at any point during the pregnancy?
Late-term abortions are rare and generally occur due to severe complications with a pregnancy.
Nearly 90% of the abortions that occurred in Michigan in 2021 were performed in the first trimester of the pregnancy, according to data from the state health department. Less than 0.02% of the total abortions performed that year occurred in the third trimester.
The amendment differentiates between the proposed fundamental right to an abortion before and after fetal viability, which it defines as the point in a pregnancy when a health care professional determines that a fetus could likely survive outside the uterus.
“This measure affirms that every individual has that fundamental right to abortion up to fetal viability,” said Kitaba. It allows medically necessary abortions after that point, allowing that decision to be driven by the opinion of health care professionals, not politicians, Kitaba said.
Bursch said that the amendment would strip the state Legislature of its authority to define when an abortion could be performed after fetal viability to protect the physical or mental health of the pregnant individual, leaving that determination up to medical professionals.
“Take an extreme situation,” he said. “You’ve got an individual and it’s their due date and the baby is completely healthy and they’re in labor and they say, ‘I’m not ready to have a child. This is going to ruin my career, and I can’t afford it. I want to have an abortion.’ “
Bursch said the amendment would allow such an abortion to occur. Even if state lawmakers enact a law prohibiting an abortion in that scenario, as long as a health care professional declares such an abortion is medically necessary, it would be allowed, Bursch said.
Kuykendall said that’s a “phony” argument.
“Medical professionals would not go along if a woman came along almost nine months pregnant with a healthy fetus saying, ‘I want an abortion,’ ” she said.
Litman said claims that the amendment would open the door to allowing doctors to perform abortions after fetal viability for essentially any reason assumes medical professionals would be willing to defy their professional standards.
“They are bound by obligations and standards of medical practice not to falsify records,” she said. Lying about a patient’s health “could constitute medical malpractice or expose a doctor to criminal liability under laws that have nothing to do with abortions,” Litman said.
She said that the proposed language in the amendment does not significantly stray from previous restrictions on abortion in place under Roe.
Bans on abortion after fetal viability that contained exceptions to preserve the health of the pregnant person were common in many states before the U.S. Supreme Court reversed Roe. This amendment would allow state lawmakers to ban abortions after fetal viability that aren’t medically indicated, she said.
“I think it is extremely odd to think that this language would lead to all these late-term abortions given that this is what the law on the books in a lot of states is,” she said.
Who would be allowed to perform abortions?
In 2021, most abortions in Michigan were through medication as opposed to surgery, according to state health department data. But Bursch argues that the amendment would open the door to risky surgical abortions performed by nonmedical professionals.
This would allow nonmedical professionals to perform abortions because it prohibits the state from taking “adverse action” against them, said Bursch, referring to the provision barring penalties against those “aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.”
“So whereas in Michigan, abortion was always something that had to be done by a doctor, ironically, this would authorize so-called back-alley abortions where a non-doctor engages in a procedure because no prosecutor would be able to take action against them,” he said.
Kitaba said that nothing in the amendment “would prevent regulations that apply to other forms of health care.”
“All this measure would do is ensure abortion care is not singled out and subject to medically unnecessary restrictions as we know that our Legislature has been motivated to do in the past for political reasons,” she said.
Litman pointed to the amendment’s definition of a “compelling” state interest in allowing restrictions to abortion rights.
“Clinical standards of practice and evidence-based medicine don’t allow Joe Schmo the dentist or barista to perform an abortion, and so states can restrict that,” Litman said.
Bursch also said the amendment could shield health care professionals who botch an abortion procedure from liability.
Litman said that she doesn’t think that the amendment would bar medical malpractice lawsuits against those who bungle abortions.
“You could sue them for providing substandard medical care,” said Litman. “That’s not aiding or assisting.”
Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at [email protected] or 313-296-5743. Follow her on Twitter @clarajanehen.
https://www.freep.com/story/news/politics/2022/08/16/michigan-abortion-law-amendment/10296812002/