Michigan's Proposal 3 would protect abortion rights but leave details unsettled
The future of abortion rights in Michigan is on the November ballot.
Proposal 3 would enshrine abortion rights in the Michigan Constitution. If adopted, it would supersede a 1931 state law that would ban most abortions and punish abortion providers.
But if the proposal passes, it would not settle every question regarding abortion rights in Michigan.
Abortion remains legal in Michigan under two court orders that bar enforcement of the 1931 law. That dormant law would ban abortions except to save the life of a pregnant woman.
That law would remain unenforceable if Proposal 3 is adopted.
Voters will see a state-approved summary on the ballot. This is the proposed amendment in its entirety:
(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.
If Proposal 3 is adopted, the right to an abortion would be explicitly guaranteed in the Michigan Constitution. The effects beyond that are being debated in a battle playing out on TV and online ads, social media and emails.
“We need to restore our rights. Passing Proposal 3 restores the protections of Roe,” says one ad aired by Reproductive Freedom for All, the “vote yes” campaign.
“Proposal 3 is confusing, misleading and extreme. It just goes too far,” says an ad aired by the Citizens to Support Michigan Women and Children.
That pretty much sums up the messaging from both sides.
Based on interviews with multiple legal experts, there’s general agreement the proposal would put abortion rights in Michigan more or less where they were right after the U.S. Supreme Court’s 1973 Roe v. Wade decision.
“The word abortion is now going to be in the Michigan Constitution if this passes,” says Mae Kuykendall, a professor at the Michigan State University College of Law. “That covers a lot of territory that precludes differences over interpretation.”
She says that means any argument over whether there’s an implied right to abortion in the state constitution would be over. That issue is being argued in court, including a case filed by Governor Gretchen Whitmer.
The vote-no campaign says there are 41 abortion-related laws in Michigan, most adopted since the Roe decision, that could be struck down under Proposal 3 — one of them being the state’s parental consent law.
Parental consent or notification requirements were upheld under the regime of Roe v Wade, which is what this proposal would reinstate, provided that the parental consent requirement had sufficient protections to protect the patients’ lives, their health, their safety, and their decision-making.Leah Litman, University of Michigan law professor
But University of Michigan law professor Leah Litman says the proposal does not necessarily preclude that.
“Parental consent or notification requirements were upheld under the regime of Roe v. Wade, which is what this proposal would reinstate, provided that the parental consent requirement had sufficient protections to protect the patients’ lives, their health, their safety, and their decision-making,” she told Michigan Public Radio.
The proposal would also not vacate requirements that doctors and other health care professionals operate under professional standards. That includes making sure patients understand the potential risks of a procedure, says Mae Kuykendall.
“Malpractice would still apply,” she says. “You either are a competent, responsible physician who performs safe abortions or you’re kind of a hack, and if you’re a hack, you’re not protected by this.”
So, if Proposal 3 passes, the right to an abortion will be guaranteed. But that doesn’t mean the governor, the legislature and judges are pushed out of the picture either.
All the experts interviewed said, under Proposal 3, any new abortion laws would have to be judged on whether they’re primarily intended to limit access to abortions. If the goal of a law or a rule is to restrict access, it would probably be ruled unconstitutional.
Karly Abramson wrote a detailed analysis of the proposal for the nonpartisan Citizens Research Council of Michigan. Abramson says she expects litigation and legislation will follow if Proposal 3 is adopted by voters.
“There will likely be cases that will challenge a lot of the existing laws,” she says. “And, so it will be in the courts for a while to kind of flesh out exactly what this looks like on the ground.”
So a yes vote or a no vote is probably not the final word. And, on the ballot with Proposal 3, the results of candidate races — for governor, the Legislature, and courts — will help determine how the amendment is applied if it is adopted.