Michigan Ballot Proposal 3: "Right to Reproductive Freedom"

On November 8, 2022, Michigan will vote on a ballot initiative, Proposal 3, the "Right to Reproductive Freedom", that restores rights and protections that Michigan women were afforded for five decades under Roe v. Wade.

The issue of abortion rights weighs heavily on people who are disabled and their families. Depending on the disability,  many disabled women of child bearing age face increased risks of harm to their health with pregnancy and increased vulnerability to sexual assault resulting in unwanted pregnancy. Women who have given birth to children with disabilities or have suffered miscarriages, depending on the underlying cause, may be at increased risk of significant problems in subsequent pregnancies. Having access to a full spectrum of medical care, including abortion and contraception, gives them more control over decisions affecting their lives and those of their families. 

The Detroit Free Press published an opinion piece on the subject on 10/29/2022, "I’m an OBGYN in Michigan. This is what I worry about when treating a patient." by Lisa Harris. Near the beginning of her article, she says this: "Many of you see the complexities in abortion, and are carrying two opposite ideas in your hearts at the same time: that abortion means a potential human won’t be born, and that a ban on abortion means that women may not be able to determine the course of their lives and their family’s lives. Both things are true, and that is what can make abortion such a hard issue. 

"I want to offer a window into abortion care here in Michigan." 

This is worth reading for its exploration of the complexities of abortion care and what Proposal 3 is intended to do. 

Rather than relying on campaign ads to form an opinion on Prop. 3, reading the exact wording of the proposal amending Michigan's state constitution goes a long way to dispelling misinformation about it and its affect: 

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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.[11] 

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The proposal does not automatically change any laws regarding parental consent for abortion for a minor child, nor does it change restrictions on who can perform abortions and safety concerns for the mother.

Whether you agree or disagree with Prop. 3, the wording is not confusing. It may lead to court challenges and proposed legislative changes over specific issues, but that can occur at any time, with or without Prop. 3 and with or without Roe V. Wade.

The default position for reproductive rights in Michigan

Without Prop. 3, Michigan could revert to a 1931 law that bans abortion in all cases except to preserve the life of the woman. It also bans any attempt to procure a miscarriage for a woman except to preserve the life of the woman. This law has been challenged in court on whether it violates rights already protected by the Michigan constitution, but a decision on this issue is still pending.

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THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
CHAPTER III
ABORTION

750.14 Miscarriage; administering with intent to procure; felony, penalty. 

Sec. 14. Administering drugs, etc., with intent to procure miscarriage—Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.
... 

750.15 Abortion, drugs or medicine; advertising or sale to procure; misdemeanor.

Sec. 15. Selling drugs, etc., to produce abortion—Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor.

Any drug or medicine known to be designed and expressly prepared for producing an abortion, shall only be sold upon the written prescription of an established practicing physician of the city, village, or township in which the sale is made; and the druggist or dealer selling the same shall, in a book provided for that purpose register the name of the purchaser, the date of the sale, the kind and quantity of the medicine sold, and the name and residence of the physician prescribing the same.

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and more... 

NPR: "Supreme Court overturns Roe v. Wade, ending right to abortion upheld for decades" by Nina Totenberg and Sarah McCammon, 6/24/2

NPR: "The Sexual Assault Epidemic No One Talks About" by Joseph Shapiro, 1/8/2018 on "All Things Considered"