On Election Day, Michigan voters will decide whether to make their state the most pro-abortion in the country. The ballot measure, called Proposal 3 or the “Right to Reproductive Freedom” proposal, would amend Michigan’s constitution to declare that “every individual has a fundamental right to reproductive freedom.” If approved, the amendment will have devastating consequences that extend far beyond cementing unlimited abortion in the state constitution.
Though proponents of the amendment claim it goes no further than reinstating a Roe v. Wade status quo in Michigan, the text makes clear that it does much more than that. For one thing, it fails to define the phrase “every individual,” which extends the amendment’s supposed “fundamental right” to minors. As a result, the amendment would make it impossible for the state to enforce parental-notification or parental-consent laws for young girls seeking an abortion.
The proposal defines “reproductive freedom” in part to include “abortion care,” another term that goes undefined. It would likely be impossible under the amendment for the state to enforce laws against gruesome and medically unnecessary partial-birth abortions or against discriminatory abortions, such as those chosen on the basis of a child’s sex or disability.
But the amendment goes even further, including under the umbrella of “reproductive freedom” a supposed fundamental right to sterilization — which would likely include sterilizations desired in the context of “gender-affirmation” procedures. Again, because the amendment fails to define “individual,” it appears to create a right for minors to obtain sterilizations without parental notice or consent.
While the proposal purportedly allows the state to protect unborn children “after fetal viability,” it includes a gaping loophole, requiring an exception in any case when “an attending health-care professional” decides an abortion is needed “to protect the life or physical or mental health of the pregnant individual.”
The “mental health” language creates the same enormous exception that the Supreme Court created in Roe companion case Doe v. Bolton. So long as one “health-care professional” is willing to agree that a pregnant mother is, for instance, emotionally “disturbed” or “anxious” about her pregnancy, she could legally obtain an abortion up until the moment of birth. In other words, all it could take is the word of one abortionist, who has a financial incentive and thus conflict of interest, to certify that a woman’s mental health requires an abortion — and the proposal specifies that courts must defer to the abortionist’s “judgment.”
The amendment might also be interpreted to require taxpayer funding for abortions and sterilizations. Because it provides that the state “shall not discriminate in the protection or enforcement of this fundamental right,” a court could determine that it constitutes discrimination for public funding to cover some surgical procedures but not abortion or sterilization. Meanwhile, it contains no protections for the conscience rights of medical professionals who object to performing abortions or sterilizations, whether for religious or moral reasons, or because doing so contradicts their best medical judgment.
According to one reliable analysis, the amendment could also easily be read to prevent the state from enforcing health-and-safety regulations for abortion facilities, because it essentially sets up abortion providers as reliable self-regulators. The proposal would allow the legislature to enact only health regulations “consistent with accepted clinical standards,” which in the case of abortion facilities are set by the facilities themselves.
And, worse yet, the amendment seems to shield anyone who botches an abortion from medical malpractice lawsuits. The proposal provides that the state may not “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,” a lower standard than the typical “informed consent” required for all medical procedures. A state-court malpractice judgment is a “state action.” In other words, so long as a woman consents to an abortion procedure, perhaps even without being fully informed, an abortionist — or, indeed, anyone who performs an abortion — could use the amendment as a defense in a malpractice lawsuit in the event that the procedure harms or kills the pregnant mother.
These may not be the only possible readings of the proposal’s language. But the language is, at best, ambiguous and would provide a lot of running room for motivated lawyers and sympathetic judges. And unlike poorly worded laws that can be fixed by the state legislature, these provisions would be enshrined in the state constitution and changeable only by a subsequent referendum.
Even more troublesome, if the amendment is approved, it is sure to become the blueprint for abortion activists across the country. Voters, even those who favor legal abortion in some cases, should reject this radicalism, which will harm not only unborn children and pregnant mothers but also countless others.