Upon Roe’s Demise, Michigan Abortion Advocates Promote “Right to Reproductive Freedom” Constitutional Amendment Ballot Initiative – How Pro-Life Advocates Can Respond

An organization called Reproductive Freedom for All is leading the campaign in support of the “Right to Reproductive Freedom Ballot Initiative,” hoping to put the proposed amendment to the Michigan Constitution in front of voters on the November 2022 ballot.

Supporting organizations include the ACLU of Michigan, Michigan Voices, and Planned Parenthood Advocates of Michigan.

Supporters have amassed millions of dollars and enlisted an army of volunteers to distribute the petitions. While the group formed in January of 2022, interest in the petition has skyrocketed recently. Organizers reported increased support after the leak of the Dobbs v. Jackson Women’s Health Organization Supreme Court decision in May and again in June as the Court formally issued their opinion in that case. The Dobbs opinion overturned the long-standing precedent set in Roe v. Wade and the supposed “Constitutional right to abortion,” returning abortion and related reproductive policy-making to the States.

Upon Roe’s demise, many States will see dramatic changes in abortion-related policy. Act 328 of 1931 in Michigan bans most abortions in the State and is the default law upon the end of Roe, however Planned Parenthood has successfully petitioned a judge to issue an injunction on enforcement of that law pending legal challenges. Furthermore, Michigan Governor Gretchen Whitmer has asked the Michigan Supreme Court to review the law, calling it unconstitutional. While pro-abortion supporters in Michigan may be seeking court victories regarding the existing law, there are also other avenues they may seek to achieve their desired ends – the Constitutional Amendment Initiative among them.

Even with a slew of funding and support, petitioners of the Amendment must race against time to place the proposal on the November 2022 ballot, as the deadline to collect 425,059 valid signatures is quickly approaching (120 days prior to targeted election, which is July 11, 2022).

The Proposal

What is in the proposed Constitutional Amendment? The proposal would add Section 28 to Article 1 of the Michigan Constitution and the full text of the addition is included below:

“Article 1, Section 28 Right to Reproductive Freedom

(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.”

You can find more information about the Initiative here.

Pro-Life Criticism of the Proposed Amendment

While the true heart of the abortion debate centers around the fundamental rights of the unborn, and by extension, the duty a State has to secure those rights from infringement, this amendment bypasses that and focuses upon the rights (real and imagined) of the mother. Moral questions and Constitutional protections of the unborn aside, critics of the proposed amendment further suggest the broad, vague, and often contradictory language of the amendment is problematic. Critics suggest it will invalidate existing abortion restrictions, including those with widespread support, and allow for open-ended interpretation by individuals that effectively allows for nearly unrestricted abortion and possible medical abuse.

Right to Life of Michigan, a major opposition group fighting the initiative, identifies several problematic passages in their summary review of the language and suggests potentially negative outcomes. Among the criticisms, they suggest the proposed Amendment:

-Creates an unlimited right to anything related to pregnancy, including abortion

-Defines a “compelling state interest” to mean any law has to both be related to the woman’s health and can’t infringe on a woman’s decision in any way. If the law infringes on a woman’s decision-making, it will be struck down

-Claims to allow late-term abortion bans after “fetal viability” but creates a broad “mental health” exception that would allow every abortion to continue

-Redefines “fetal viability.” Instead of it meaning the point children can survive outside the womb—about 23 weeks—it would mean children that require significant medical care are not considered “viable,” like for example every child in the NICU

-There’s no limit to who can help women exercise these unlimited rights

-The amendment does not specify whether “individual” includes minor children

What Pro-Life Advocates Can Do

Concerning this specific initiative, including to find a more detailed analysis of the petition language, pro-life advocates can consult Citizens to Support MI Women and Children.

Whether or not this particular proposed amendment succeeds (there is no indication of how many valid signatures the organizers have yet collected), much of what pro-life advocates must do is clear. The battleground is now in the States and in the minds of the People. Money and organization is needed to counter the many attempts at crafting new pro-abortion legislation at the State level that will inevitably come from pro-abortion groups. This makes donating to trustworthy organizations like Right to Life of Michigan and Live Action a must.

Making a principled pro-life stance a requirement for political candidates is also a necessity, as lip-service and/or compromise on the issue will inevitably lead to an erosion of the opposition necessary to ensure the type of language that is problematic in the above initiative is not inserted in other proposed laws. This is especially important in “purple” States like Michigan that are vulnerable to divided government and electoral upsets. Seek out scorecards like this National Right to Life scorecard and research where your local and statewide candidates stand on abortion.

Finally, and most importantly, the pro-life stance must be articulated strongly, clearly, and honestly to win over enough people to cement its validity into the zeitgeist. Pro-life advocates have the moral high ground but must win the information war and address practical concerns to counter the fallacy and distortions of their opponents. Not only Christians must be unified and comfortable supporting their pro-life stance, but secular people as well. Speaking the language of fundamental rights, objective moral principles, offering/strengthening valid practical alternatives to abortion, and humanizing the unborn are absolutely essential to winning over the hearts and minds of those sitting on the fence when it comes to supporting pro-life policies.

As Justice Alito wrote in the Dobbs decision, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” It is a profound moral question. When the People conclude abortion is a morally impermissible violation of the fundamental rights of unborn human beings, and they ought to reach this conclusion, it becomes the duty of the People to prohibit such acts and seek justice for the violation thereof.

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