Proposal 3: What to know about fierce battle over abortion rights in Michigan

Michigan voters are being asked to amend the state constitution next month to make reproductive freedom a fundamental right after the U.S. Supreme Court overturned Roe v. Wade, upending a half-century of abortion rights at the national level.

But even if the measure passes, most legal experts agree that Proposal 3 on the Nov. 8 ballot won't immediately settle the decades-long legal and political battles over abortion.

If approved by voters, the constitutional amendment's wording will likely be subject to legal challenges and interpretations over whether it conflicts with or overrides existing state laws.

“Any time you have a constitutional amendment, you likely would have some litigation to clarify it because, by definition, constitutional amendments are broadly worded. They have to be,” said former Justice Marilyn Kelly, a Democratic nominee who served on the high court between 1996 and 2012.

"But there’s going to probably be litigation either way, whether it passes or fails."

At the Michigan Democratic Party's August convention, Justice Richard Bernstein said the Michigan Supreme Court would have the final say on abortion rights in Michigan — be it through two pending lawsuits challenging Michigan’s current abortion law or through the interpretation of Proposal 3.

If or when the courts take up the details of the Reproductive Freedom for All Proposal, their deliberations would play out against the backdrop of months of heated debate over the reach and meaning of the proposal.

As of Oct. 17, Michigan voters have been exposed to more than $38.6 million in television advertising related to Proposal 3, according to AdImpact Politics, a nationwide ad tracking service. About $22.7 million has been spent to oppose the proposal and $15.9 million spent to support it.

In ads and statements, supporters of Prop 3 have described the amendment as a way to keep the status quo of abortion rights in place in Michigan in a way that makes the provisions immune to most legislative interference.

“I don’t view it as a lawyer as fundamentally departing from Roe,” said Steve Liedel, the attorney for the Reproductive Freedom for All ballot committee advocating for a "yes" vote on Prop 3.

But opponents have run campaigns questioning the proposal’s broad language and claiming it would go much further than Roe. They’ve argued the language would render unenforceable a whole host of laws enacted over the past few decades to regulate abortion — such as parental consent for minors, regulations on abortion providers and bans on late-term abortion.

“This is such a different proposal than Roe and Casey,” said John Bursch, a former solicitor general and counsel for the Michigan Catholic Conference and Michigan Right to Life. “It’s in another world entirely.”

Right to Life of Michigan and Michigan Catholic Conference are part of a coalition of groups that make up the official ballot opposition group Committee to Support MI Women and Children.

A non-partisan Citizens Research Council of Michigan analysis also speculated the amendment would go further than Roe. Under the proposal, individuals would retain access they had prior to the U.S. Supreme Court's June 24 decision but “with fewer legal hurdles” and “may have increased access to abortion at later stages of pregnancy,” the analysis said.

“In addition, Proposal 3 would create protections for a wider range of health care services and, therefore, has the potential to directly apply to significantly more people than the previous status quo,” the analysis said.

Current law and proposed language
Michigan’s current abortion statute — last updated in 1931 but dating back to 1846 — bans abortion at all stages except to save the life of the mother.

The law has been largely unenforceable over the last 50 years since the U.S. Supreme Court established a constitutional right to abortion in Roe. A later 1992 decision in Casey v. Planned Parenthood allowed additional regulations around abortion to protect the health of the mother and a viable fetus.

But the U.S. Supreme Court’s Dobbs decision this summer upended Roe and Casey, sending the question of abortion rights back to the states.

In anticipation of the Dobbs decision, two lawsuits were filed April 7 challenging Michigan's 1931 law and arguing there is right to abortion found in Michigan’s constitutional rights to due process and equal protection. One of the suits was filed by Gov. Gretchen Whitmer against 13 county prosecutors with abortion providers in their counties and another was filed by Planned Parenthood of Michigan against Attorney General Dana Nessel.

Court of Claims Judge Elizabeth Gleicher sided with Planned Parenthood in a preliminary injunction in May and permanent injunction in September. In August, Oakland County Judge Jacob Cunningham issued a preliminary injunction in the case brought by Whitmer. Both decisions have effectively halted enforcement of the 1931 abortion ban but are under appeal.

While those cases were churning through court, the Reproductive Freedom for All amendment proposal worked its way onto the ballot, collecting a record number of signatures to qualify for the November election.

At its most basic, the language of the proposed amendment creates an explicit right to “reproductive freedom” in the Michigan Constitution — one that all sides agree would invalidate, at the least, the 1931 abortion ban. The proposal says that right encompasses all decisions related to pregnancy including “prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”

The language prohibits infringement on the right to reproductive care unless there is a “compelling state interest” and that interest must be secured by the “least restrictive means.” The language limits the definition of a “compelling” interest to elements “protecting the health of an individual seeking care” and not infringing on "that individual's autonomous decision making."

The proposal does allow the Legislature to regulate abortion after fetal viability, which it defines as when there’s a “significant likelihood” of a child’s survival outside the uterus “without the application of extraordinary medical measures.”

But the language makes an exception for post-viability abortions if it is determined necessary by a health care professional “to protect the life or physical or mental health of the pregnant individual.”

Unlike Roe, which used a "strict scrutiny" standard to determine the constitutionality of abortion regulations, or Casey, which lowered the benchmark for regulation to an "undue burden" test, Proposal 3 would apply a "compelling state interest" test to any regulations on a pre-viability abortion. That compelling state interest includes a specific definition limiting the state interest to the person seeking care, not the fetus, and prohibits any regulation from infringing on an individual's decision-making.

It's the new definition of compelling state interest that opponents argue would make it nearly impossible to impose regulations on abortions before a fetus is viable.

"They are creating a new, absolute, cannot-be-infringed-upon right," said David Kallman, a lawyer with the conservative Great Lakes Justice Center who is representing prosecutors seeking to preserve the 1931 abortion ban.

Liedel countered Kallman, arguing there is no "magical loophole" in the language, and noted, broadly speaking, that courts have a duty to harmonize conflicting laws whenever possible. He expects the same to occur should Proposal 3 pass.

“Courts presume that laws enacted by the Legislature are constitutional,” Liedel said. “They’re all entitled to a presumption of constitutionality.”

The fight over breadth, meaning
Beyond that overarching burden test, opponents have argued at length over the breadth and meaning of specific terms within the amendment. Chief among the specific concerns cited is the second word of the proposal, “individual.”

Opponents argue that by using the word individual instead of adult or woman, the protections in the amendment would apply to minors as well and potentially undo the state’s existing laws requiring parental consent for someone younger than the age of 18 seeking an abortion. They maintain that could also apply to gender transition surgeries for young people since “sterilization” is one of the rights protected by the proposed constitutional amendment.

But supporters of the measure have discarded that idea, arguing there are other constitutional freedoms subject to parental rights and age restrictions. For example, the constitution enshrines an individual right to vote, yet statutory restrictions on minors preventing them from voting before the age of 18 coexist with that individual right.

Additionally, Michigan’s existing parental consent law already allows someone younger than the age of 18 to petition the courts independent of their parents when seeking to obtain an abortion.

Michigan State University law professor Mae Kuykendall said Michigan's parental consent law is unlikely to be affected by the amendment.

"Reasonable people can come to an agreement that a minor has a constitutional right and a minor needs help exercising it and an acceptable system is already in place," Kuykendall said.

Nessel, who could be tasked with defending the constitutional amendment should it pass and she is re-elected, dismissed the idea that Michigan laws concerning a minor's access to procedures such as abortion would go away with the amendment.

"Age restrictions are almost always deemed to be permissible and they will be in this situation as well," Nessel said.

As far as references to sterilization, Liedel said, the term falls under protections related to pregnancy, meaning it would apply to surgeries such as tubal ligation or a vasectomy for individuals post-puberty, not puberty blockers for those not yet capable of becoming pregnant.

Who could perform abortions?
Opponents also have challenged the use of the term “health care professionals" in Proposal 3, maintaining it could allow all manner of individuals to perform abortions, such as dentists, masseuses or chiropractors. A provision barring the state from penalizing or prosecuting someone aiding or assisting a pregnant woman in exercising their "reproductive freedom" has raised concerns among opponents that the plan would prevent prosecutions in cases where an abortion provider acted negligibly.

Kuykendall and others argued it's a nonsensical leap to say the amendment would invalidate the requirements abortion providers must currently meet to be licensed. The health of the individual receiving care is part of the compelling interest that would allow professional and legal standards surrounding abortion to continue, she said.

"Common sense is not out the window," Kuykendall said. "There's nothing about the amendment that implies general rules of professional competence fall away."

Opponents also have questioned where the line would be drawn on “fetal viability,” typically defined as around 24 weeks, and what would qualify as threats to the “physical or mental health of the pregnant individual” that would allow for a late-term abortion. At times, they've argued the lack of definition would pave the way for an increase in late-term abortions or that anxiety about giving birth could be reason enough to qualify for terminating a pregnancy in the third trimester.

Proponents have largely indicated those benchmarks would be up to the "professional judgment of an attending health care professional," but said it was ridiculous to say anxiety would merit a post-viability abortion.

When asked for an example of a mental health condition that would allow for a late-term abortion, Washtenaw County Prosecutor Eli Savitt said on a recent conference call with reporters that it would be up to the professional judgment of a doctor.

A physician on the Prop 3 press call, Dr. Melissa Bayne, said she would consider an individual who was raped and didn't know they were pregnant or was prevented from obtaining an abortion because of an abusive relationship to be an example of a mental health exemption for a late-term abortion.

Michigan recorded a total of 30,074 abortions in 2021, of which 28,409 involved state residents, according to Michigan Department of Health and Human Services data. Of those 30,074, nearly 89% occurred before the 12-week mark. About 6% of Michigan's 30,000 abortions last year were performed via dilation and evacuation, which is usually used for later-term abortions.

Bursch argued the constitutional language is plain and broad enough that it wouldn’t tolerate existing restrictions.

“Point me to the language that puts reasonable limits on the things that I’m talking about,” he said.

The analysis from the Citizens Research Council raised similar questions about the status of public health and safety laws governing parental consent, informed consent, late-term abortions and taxpayer money for abortions. Some of those restricting access could go away; others might be considered justified by the state interest in protecting the health of the mother, the analysis said.

“While some existing legislation will be inevitably impacted, the precise reach of the amendment’s language is still largely unknown,” the analysis said.

What happens if it passes? Fails?
If it is approved, Proposal 3 would take effect 45 days after passage and is considered “self-executing,” meaning it wouldn’t require the Legislature to implement or supplement the language in any way.

The two lawsuits seeking a court ruling finding abortion is in the Michigan Constitution likely would be dismissed as moot, Kelly said.

Legal challenges to the language could crop up as real-world situations arise — such as a dispute over a late-term abortion and whether the “physical or mental health” of the individual was enough to warrant a post-viability abortion, the Citizens Research Council analysis said.

At that point, the courts would be pulled in to decide what the benchmark is.

Bursch argued the expectation that challenges would arise isn’t a given as county prosecutor offices with limited resources weigh the likelihood that they could win a case given the breadth of the language in the amendment.

“Why bring resources to something that’s going to lose as soon as you walk through the courthouse door?” Bursch said. “To think that any court will put reasonable limits on this is a pipe dream, if it even gets to court.”

If, down the road, the state reconsidered the abortion rights constitutional amendment, citizens would need to vote on a separate constitutional amendment to change it.

If Proposal 3 does not pass, it is likely the Michigan Supreme Court would take up one or both pending cases challenging the 1931 abortion ban.

The state's high court has a 4-3 Democratic Party-nominated majority, but two seats currently occupied by Democratic- and Republican-nominated justices are up for re-election Nov. 8. Justices Bernstein and Brian Zahra are running to retain their seats against two candidates: Republican nominee Paul Hudson and Democratic nominee Kyra Harris Bolden.

The court would decide whether that right exists in the constitution, as the lower courts have ruled, and to what extent that right clashes with existing regulations on abortion, the research council's analysis said.

If the Supreme Court decides against a right to abortion in the state constitution, there likely still will be litigation over the language used in the 1931 law, Kelly said.

Additionally, several county prosecutors have said they wouldn’t enforce the 1931 abortion ban, setting up the possibility for a patchwork of abortion enforcement across the state.

“All kinds of litigation could arise if Proposal 3 fails,” Kelly said.