The Dobbs decision by the United State Supreme Court ended federally legal abortion nationwide. The decision is now on the states and Michigan decides next week.
On the ballot, it’s Proposal 3, Reproductive Freedom for All.
More than $50 million has been spent on this campaign for and against the proposal this election cycle. But will it do what voters think it will?
“The only thing we can say for sure is, we’re not sure exactly how this will turn out,” said John Sellek, Republican strategist and founder of Harbor Strategic.
When Roe v. Wade was overturned, Michigan fell back to an abortion ban from 1931. Governor Gretchen Whitmer filed a lawsuit against that law and we await a decision. In the meantime, voters may circumvent that law altogether by passing Prop 3.
“The fact of the matter is when the Dobbs decision leak, Republicans could have adopted a position that enjoyed wide support. One that was a clear majority position,” said Adrian Hemond, Democratic strategist and founder of Grassroots Midwest. “Pick a number. It could be 15 weeks, could be 18 weeks. The number doesn’t actually matter, add a broad list of exceptions and that’s like a 65% proposition with the American public.”
The ballot proposal would give every individual the fundamental right to reproductive freedom and the right to all decisions concerning pregnancy. A very broad proposal.
“You can’t have every circumstance within a constitutional amendment. A constitutional amendment is supposed to set out the broad parameters, and here at declares that there’s a right of reproductive freedom,” said Michael McDaniel, constitutional law professor at WMU Cooley Law School.
“Voters don’t want to get suckered. They don’t like that and they might look at this the more they hear 40 laws may be removed,” said Sellek. “This might end up in the courts for a decade.”
“A small group of attorneys drafted this ballot proposal, and it looks very likely to pass,” said Hemond. “What we have to look forward to, after this, is years and years of litigation.”
The broad language allows for a lot of interpretation. That means the details of the abortion standards will be ironed out in the legislature or the courts. Opponents say while broad, the language is plain and cannot be changed.
“We have to look at the language to see what is possible and I don’t think that it’s extreme or inaccurate to talk about what could happen,” said Kimberly Hill Knott, a member of Democrats Against Prop ., “Regardless of how extreme it sounds. It may not happen, but it could happen.”
Like parental control; could a minor get an abortion without parental consent?
“Parents have always had the ability and are expected to give consent for medical procedures of any child under the age of 18,” said McDaniel.
“But that’s not what the proposal says. It says every individual shall have this right,” said John Bursch, VP of Appellate Advocacy at Alliance Defending Freedom. “The response from the other side will be that during Roe v. Wade and Casey, there was still parental consent. But that’s because that was judge-made law and judges could create exceptions to that. That phrase ‘every individual’ doesn’t appear anywhere else in the Michigan Constitution or the U.S. Constitution.”
Bursch is the former solicitor general for Michigan. He says this language is iron clad and would allow abortions up to nine months.
McDaniel is a constitutional law professor and the language allows states to create limits based on viability.
“In the very next sentence, this proposal says at the point of fetal viability the state can regulate,” Said McDaniel. “It doesn’t talk about strict scrutiny at that point so you have a right, and almost unfettered right, to reproductive freedom prior to fetal viability. This proposal acknowledges that and it will be in the constitution. Post fetal viability is when the state can regulate for the life of the fetus.”
Bursch counters again saying that is true but there are exemptions for mental health needs of the mother.
“As long as she tells the abortionist that ‘I’m anxious and nervous about having this child, I think I made a mistake,’ the abortionist can check a box and then she can have the abortion,” said Bursch.
Interpretation of the law by lawyers and judges for the next decade will be the ultimate voice in the matter but voters must interpret the proposal themselves, this week.
“They should go read the words of the actual proposal,” Said Bursch. “There’s going to be a 100-word summary on the ballot that doesn’t have anything to do with the words that are on the actual proposal.”
“I want voters to read it,” said McDaniel, “Read it pretty carefully and ignore all the stuff.”