How You Can Help Protect Michigan Mothers and Unborn Children
No on Proposal 3!
Michigan will vote this fall on Proposal 3: the Reproductive Freedom For All state constitutional amendment. It is a radical proposal. If the amendment were honestly explained, the overwhelming majority of Michiganders (and Americans) would reject it.
Here is the full text of the amendment as it would appear in the Michigan Constitution (with helpful annotations). It’s worth reading in full, but I don’t want to make this blog too long before I get to the call to action. (That’s right: De Civitate is now assigning homework at the end of the article!)
If passed, this amendment would, first and foremost, abolish all existing regulations on abortion in the state of Michigan, including:
Proposal 3 would repeal Michigan’s law against third-trimester abortions.
Proposal 3 would repeal Michigan’s parental consent laws. Michigan would have to allow children to get abortions without their parents’ consent, or, indeed, even their knowledge. (Note: Michigan parental consent laws already provide a judicial bypass mechanism if the pregnant teen’s home is unsafe.)
Proposal 3 would repeal Michigan’s 24-hour waiting period before getting an abortion.
Proposal 3 would repeal Michigan’s ban on selling fetal body parts after abortion and prevent future legislation to ensure dignified treatment of human fetal remains.
Proposal 3 would repeal Michigan’s informed-consent law, which presents women who are deciding on abortion with information about fetal development, the abortion procedure, and an ultrasound of their fetus.1
Proposal 3 would almost certainly require Michigan taxpayers to fund abortions through Medicaid.
Proposal 3 would repeal Michigan’s law against partial-birth abortions.2
Proposal 3 would drastically pare back (effectively repealing) Michigan’s law requiring doctors to treat (and not kill) infants born alive after a failed abortion.
Proposal 3 would repeal Michigan’s law that says only licensed doctors can perform abortions, throwing open the abortion field to masseuses and athletic trainers.3
Proposal 3 would elevate abortion to a constitutional right similar to (actually somewhat stronger than) the right to free exercise of religion, which cannot be regulated or “burdened” in any way except in the most dire circumstances. (You might think partial-birth abortion qualifies as a dire circumstance. Under Proposal 3’s definition of “compelling,” you would be wrong!)
Proposal 3 would repeal Michigan’s pre-Roe 1931 law banning abortion altogether.
I think the 1931 law is good and should maybe be modified, but not repealed. (Certainly Michiganders in the 1960s seemed to think so.) I am aware that the majority of Michiganders disagree with me, and I—it should be mentioned—am not a Michigander.
Many voters may want to support Proposal 3 in order to repeal the 1931 law. But Proposal 3 is massive overkill with a ton of side effects! You don’t even need a constitutional amendment to do this! The legislature can do it themselves. Even if legislative gridlock drove you to pass a constitutional amendment, you could pass an amendment that just repealed the 1931 law, without all the sweeping side effects.4 There is no reason for Proposal 3’s radical overreach, except… well, Proposal 3’s advocates are radical, and are hoping Michigan voters won’t notice!
Most of these laws could not be resurrected by a future legislature. Proposal 3’s promise that “the state may regulate the provision of abortion care after fetal viability” is cancelled by the very next clause (“in no circumstance shall the state prohibit…”). That clause creates so many exceptions that it completelt erases any theoretical rule. We know how this works, because we’ve seen this game played before; similar language was used to prevent the state of Nebraska from establishing a ban on partial-birth abortion in the 2000 U.S. Supreme Court case Stenberg v. Carhart, and similar language in 1973’s Doe v. Bolton established that virtually any concern of any kind qualifies for the exception. If Proposal 3 passes, no abortion limitation of any kind is likely to take effect in Michigan ever again.
But Proposal 3’s impacts don’t stop at abortion! It would have a substantial impact on other areas of law, which would have to be worked out by the courts:
Proposal 3 would challenge Michigan’s laws requiring parental consent before their gender-dysphoric children go on puberty blockers and pursue permanent sterilization.
Proposal 3 would challenge Michigan’s regulations on abortion advertising. Want to see abortion ads on billboards on your drive into work?
Proposal 3 would repeal at least some—perhaps all—safety regulations on abortion clinics within Michigan.
Proposal 3 would challenge Michigan’s law against human cloning, a clear example of reproductive freedom.
Proposal 3 would allow schools and others to provide birth control to children without parental knowledge or consent.
Proposal 3 would challenge Michigan’s statutory rape laws. Since Proposal 3 forbids age discrimination in laws that implicate “reproductive freedom” and “individual autonomy,” courts would have to decide whether sexual intercourse is part of “reproductive freedom” and “autonomy.” If the answer is “yes,” then the state could not penalize sexual intercourse between adults and minors, at least not in the blanket way that it currently does. I think the answer would be “no,” fortunately, but, the way the amendment is phrased, I can’t be sure Michigan courts will see it the same way as I do.
Proposal 3 could make infanticide—actual infanticide, i.e. the murder of children who have already been born—harder to investigate or prosecute, and would in some cases appear to immunize people who commit infanticide. This is because of the proposal’s language preventing “adverse action… based on their actual, potential, perceived, or alleged pregnancy outcomes.” The problem here is, investigation of infanticide sometimes begins with a dead body that looks like it may have been stillborn, but then again maybe it wasn’t. Today, there’s an investigation. Under Proposal 3, the investigation could be seen as illegal even to start. (Though that’s far from a sure thing.)
There are other effects, but those are the splashy ones, and that seems like enough for today, doesn’t it?
All the laws I just listed, which Proposal 3 would either challenge or outright repeal, are very popular. Repealing them would be very unpopular.5 None of these side effects are necessary. They have been added because pro-abortion Michiganders are trying to harness manufactured fears over a venerable state abortion ban to win themselves everything they’ve ever wanted.
They are probably going to succeed.
Proposal 3 Is Winning
Proposal 3 has won in every poll so far, and by commanding margins. Most voters do not read the amendment language and think to themselves, “Oh, this makes partial-birth abortion legal.” Why would they? The amendment language talks about rights and birth control and freedom and stuff! The amendment never says outright that “All Michiganders have a fundamental right to induce labor, push a baby halfway out of its mother’s body, and then stab it in the neck and suck out its brains!” So most voters are sleepwalking into this election, unaware of the risks presented by Proposal 3 and likely to support it because it sounds nice.
I’ll spare you my usual rant on why referenda are dumb and bad. This always happens, but it is what it is. Michigan is a state that has voter referenda, so advocates on both sides use the tools available to maximum effect. If I were in charge of the Michigan pro-choice movement, this is exactly what I would do. The only thing we can do is spread the word about the unpopular impact of this bill and try to stop them in time.
There is hope on that front. While Proposal 3 still has a commanding 20-point lead in the latest poll, that’s a huge improvement from its 43-point lead in mid-August. No On Proposal 3 is campaigning hard and getting the word out.
Also, there’s a well-known effect in referendum campaigns where the final result tends to underperform the polling, often by a substantial margin. That article is mostly about guns, but you see it all over the place… including in Kansas’s abortion referendum in August. The only poll of the race showed the pro-life amendment ahead by 4 points. It instead lost by 20. The Michigan polls may be off by a similar number.
Nevertheless, being down by 20 in the polls with less than three weeks until election day is not a good place to be! As usual in these battles, the pro-abortion side is well-funded, well-organized, and has the vocal support of all the most powerful platforms in our society. The anti-abortion resistance is ragtag, shoestring, and a little flat-footed. Their results do not rank high in search engines. Their volunteer operation does not appear geared toward mass mobilization. This is the small-ball stuff that loses winnable votes. The institutional Catholic Church is involved, and the institutional Catholic Church poisons most things it touches these days, from the Pontifical Academy for Life to the entire nation of Ireland. Worse yet, the Michigan Republican party struggled to field good candidates in this year’s gubernatorial election, which may depress the GOP’s reliably pro-life voter base in Michigan. So our odds are not as good as they would be on a level playing field.
You, the person of good conscience watching this play out from the sidelines, should try and help out. Not just for the sake of Michigan mothers and children—but for the sake of mothers and children in your own state as well. If this passes in a blueish-purple state like Michigan, especially by a large margin, they will be coming to your state next. Better to nip the whole gambit in the bud right now.
How You Can Help
If you live in Michigan, sign up to take action at SupportMIWomenAndChildren.org. Check the box “Connect Me With Local Volunteers.”
They will connect you with local volunteers (exactly as it says on the tin), and then you should go do whatever they ask of you whenever you have time. This is how ragtag, shoestring resistance cells operate!
If you do not live in Michigan, of course you are free to donate. You can do so on their donation page. Can’t argue with that.
But, right now, your time is worth as much than your money. In fact, unless you’re donating a very large amount of money, your time is very likely worth a whole lot more than your money.
So join the phone team. Michigan Right to Life is contacting voters to tell them about this extreme amendment and encourage them to get out and vote. For a lot of these phone numbers, it’s illegal to robodial, so actual human beings have to punch in the numbers and talk to potential voters. You can help!
Write to Emily Kroll (from Right to Life of Michigan) at ekroll@rtl.org. Tell her James Heaney sent you and that you’re available to call people. She will send you a list of phone numbers and a very sensible phone script for you to follow. (Yes, I asked her if I could post her actual email address on the Internet before I wrote this.) You can dial numbers on weekends. That is what I’m spending this Sunday afternoon on—and maybe a couple more weekend afternoons before the election. She started me off with 100 phone numbers… but they have 215,426 phone numbers they need to dial, just off one list of potential voters, so maybe I can get a few more than that? If 2,154 pro-lifers volunteer for the phone team, we can be done in an hour and go on to the next list. If not, we may leave persuadable voters on the sidelines at home and lose a close election.
We are probably going to lose anyway, and it may not even be close. But we don’t fight because we expect to win. Who could expect to win in a world where mothers are pressured to kill their children for the sake of the economy? We fight anyway, because it is the right thing to do; because there are lives on the line, crying out for help, and we're the only ones who can help them.
So skip your Sunday nap and man the phones. If we get lucky and win, so much the better.
HOUSEKEEPING NOTE: I’ve updated my recent article on Big Penguin Polling after a discussion with BPP over Twitter. You can check that out at the bottom of the original article.
Notice that, in all other contexts, including other ultrasounds, we would call her a “baby,” not a “fetus.”
A federal law, the Partial-Birth Abortion Ban Act of 2003, would continue to prohibit partial-birth abortions in Michigan… except that national Democrats, including President Joe Biden, have promised to repeal this law if re-elected. They call this “codifying Roe,” for some reason—even though Roe coexisted with a national partial-birth abortion ban for almost 20 years. If Democrats and President Biden succeed, and Proposal 3 passes, partial-birth abortions will be legal in Michigan once again.
Michelle Richards, associate professor of law, disagrees with me in this article. This implies to me that Michelle Richards has not done a whole lot of work with compelling interest / narrowly tailored / least-restrictive means standards. There’s an old saying: this standard is is “strict in theory, fatal in fact” to laws that raise questions under it. I agree with Richards that Michigan will likely be able to show a compelling interest in women’s health, but not that physician licensure requirements are narrowly tailored or the least-restrictive means of attaining that interest.
Nor is Richards taking into account the other sweeping language of the amendment, which would be weaponized against the state in any court proceeding: “the state shall not discriminate in the protection or enforcement of this fundamental right”, requiring any regulation find positive support (not mere silence) in “clinical standards of practice,” and striking down any regulation—even one that meets all other requirements!—that interferes in the woman’s “autonomous decision-making.”
You may object that I would oppose the narrower amendment, too. You’re right! I would! But proposing a narrower amendment would deprive me of sooooo many persuasive arguments. I would have to convince voters to actually protect the unborn because they are worth protecting. But the Proposal 3 people have made my job so much easier: by proposing a sweeping law that legalizes abortion up to the moment of birth, sweeps aside many popular protections, and creates a right for kids to get puberty blockers without parental knowledge, they have given me a TON of reasons why I oppose this law—reasons the average voter actually agrees with!
Exception: rightly or wrongly, the 1931 state abortion ban is legit unpopular, as I said when I first mentioned it. But, like, voters love banning partial-birth abortion.