Proposed Michigan abortion amendment has major problems, pro-life coalition says

Gretchen Whitmer Governor of Michigan Credit Michigan governors office Gretchen Whitmer, Governor of Michigan. (Official portrait)

Advocates of legal abortion in Michigan have proposed a constitutional amendment that pro-life critics say is so poorly written it would do more than just remove legal protections for unborn children. 

It would affect almost everything related to pregnancy, threatening parental consent requirements for minors, bans on taxpayer funded abortions, and the state ban on human cloning.

“This is an historic occasion for the pro-life community and indeed all people in Michigan to oppose such an extreme amendment to the state constitution,” Paul A. Long, president and CEO of the Michigan Catholic Conference, said May 24. “We are eager to engage with all people of goodwill to clarify how dangerous this proposal is for unborn children, vulnerable women and families.”

The Catholic conference announced May 24 it has joined the pro-life coalition Citizens to Support MI Women and Children to oppose a far-reaching pro-abortion rights addition to the Michigan constitution known as the Reproductive Freedom for All amendment.

“Our unified and committed campaign is eager to promote the value of life and well-being of pregnant women as the abortion industry has set its sights on Michigan,” Long said. “The organizations pushing this constitutional amendment are actively seeking to overturn every common-sense statutory safeguard that regulates abortion.”

Backers of the Reproductive Freedom for All amendment must collect 425,059 valid signatures of Michigan registered voters by July 1. Their coalition is backed by the Planned Parenthood Advocates of Michigan, the ACLU of Michigan and Michigan Voices. Gov. Gretchen Whitmer and Attorney General Dana Nessel are among the elected officials backing the proposal.

“The Reproductive Freedom for All constitutional amendment is not about protecting existing rights, but smuggling a radical proposal into the constitution that would repeal or drastically alter dozens of state laws,” Citizens to Support MI Women and Children said on its website. “The amendment would fundamentally change the relationships between parents and children, as well as women and their doctors.”

“This poorly-worded amendment would repeal dozens of state laws, including our state’s ban on tax-funded abortions, the partial-birth abortion ban, and fundamentally alter the parent-child relationship by preventing parents from having input on their children’s health,” the group continued.

The proposed amendment’s 92-word summary says it would “establish new individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility.”

It would allow a ban on abortion after “fetal viability” except “to protect a patient’s life or physical or mental health.” It would “forbid state discrimination in enforcement of this right.” It would bar prosecution of individuals who seek to exercise a reproductive freedom right or who help a pregnant individual to do so. It would “invalidate all state laws that conflict with this amendment.”

Citizens to Support MI Women and Children said the details of the amendment deserve scrutiny.

“To quickly summarize, this proposed amendment is written so broadly and so poorly worded that it would harm every state law on abortion and everything else related to pregnancy,” the coalition said in its Feb. 3 analysis. “The only limit is consent, which is not limited to adults by the amendment.”

If the proposal becomes law, it would affect parental consent for children’s medical consent involving sex or pregnancy, including sterilizations. It could disallow any parental consent for children seeking abortions, and bar investigations of anyone who assists with an abortion, even if, for example, the accused person is a school counselor who takes a 13-year-old to get an abortion without parental knowledge.

The fact that the amendment does not define the age of an individual means its provisions “could apply to children as well as adults,” Citizens to Support MI Women and Children said. “If someone convinces a child to be sterilized, the parents have no say,” said the group.

The amendment could affect informed consent for women seeking abortion, and screening for cases where women are being coerced into abortion, as currently required by state law. It could affect requirements that only doctors perform abortions, and it could mean health insurance coverage must automatically cover elective abortions.

According to the group’s analysis, the “mental health” exception for late-term abortion bans would allow late-term abortion for any reason. As written, the amendment would allow any attending health care professional, not only medical doctors, to decide whether an abortion is medically indicated to protect a pregnant mother’s life or physical or mental health.

The amendment’s language protecting autonomy could strike down bans on human cloning, the pro-life coalition said, “since cloning oneself is an autonomous pregnancy decision.” Similarly, the buying and selling of babies through commercial surrogacy could be legalized, and the proposed amendment could make it impossible to impose health or safety regulations on the fertility industry.

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As of May 4, state records indicate the Reproductive Freedom for All committee has raised over $1.4 million in cash and $500,000 in in-kind contributions. As of April, the pro-life committee had received only $103,000 in contributions.

The effort to gather signatures for the pro-abortion rights amendment has run into obstacles: Michigan’s Board of State Canvassers in early February rejected the coalition’s petition form for failing to meet state requirements, and again rejected the petition form in March, delaying the ability to collect valid signatures from supporters.

Michigan’s existing abortion law, dating to 1931, criminalizes abortion as a felony, except to save the life of the mother. In a 1972 ballot measure, 60% of Michigan voters rejected a proposal to allow abortion up to 20 weeks into pregnancy. In 1997, the Michigan Court of Appeals found that there is no right to abortion in the state constitution.

The state law has not been enforced since the 1973 Supreme Court decision Roe v. Wade mandated that all states legalize abortion. However, abortion advocates have filed legal challenges to the law in the event that Supreme Court precedents are overturned in a decision expected in the next two months.

On May 17, Court of Claims Judge Elizabeth L. Gleichner issued a temporary injunction against enforcement of the long-standing law, contending that the right to abortion is almost certainly protected under the state’s due process provisions protecting bodily integrity.

On May 20, the Michigan Catholic Conference and Michigan Right to Life, represented by Bursch, filed a complaint asking the Michigan Court of Appeals to intervene. They asked the court to issue an order of superintending control over Gleichner and either take over the case or require the judge, who previously represented Planned Parenthood in a failed challenge to precedent upholding the state abortion law, to recuse herself.

Whitmer has filed her own lawsuit, which asks the Michigan Supreme Court “to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution.”

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Long, the president of the Michigan Catholic Conference, reiterated the need to defend Michigan’s laws against abortion.

“In the courtroom and at the ballot box, human life in Michigan is being threatened by the most extremist abortion advocates this state has witnessed,” he said. “Together with our coalition partners, we vow to work with diligence – guided by prayer – to uphold the sanctity of life in Michigan and to ensure every vulnerable mother has access to the support and compassion she needs to care for herself and her child.”