Michigan voters are being asked whether to add a new section to the state constitution concerning “reproductive freedom.” Proposal 3 would initiate a new law (which can be read in full on the Secretary of State’s website) that would include the following:
- Proclaim that “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.”
Analysis: The proposal’s use of the term “individual” means that the proclaimed right to reproductive freedom would apply to any person, regardless of age (Michigan law currently requires minors to obtain parental consent before obtaining abortions, except where a judge decides that such consent is not required) and regardless of sex.
The application of the proposal to men and boys may be surprising. However, the proposal expressly addresses contraception, sterilization and infertility care, which are not limited in application to females, and could include treatments such as vasectomies, hysterectomies, medications and gender affirmation surgeries. The proposal also uses the generic term “pregnancy” rather than something more limiting, such as “the individual’s pregnancy,” and prohibits the state from discriminating in relation to the proclaimed right (discussed below), each of which further suggests that the proclaimed right is intended to apply to everyone.
- Prohibit the denial, burden or infringement of this fundamental right “unless justified by a compelling state interest achieved by the least restrictive means,” while defining compelling state interest. That definition is met “only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards… and does not infringe on that individual’s autonomous decision-making.”
Analysis: Unlike other sections of the proposal, this prohibition does not expressly prohibit “the state” from certain actions. Whether this prohibition on burdening the proclaimed right would apply to non-state actors (for example, health systems that are unwilling to participate in abortions or sterilizations) is unclear. However, it would apply to state actors, as it references a “compelling state interest achieved by the least restrictive means.” Accordingly, no state law could burden an individual’s “right to make and effectuate decisions about all matters relating to pregnancy” unless that law met that threshold.
The restrictive definition of “compelling state interest” means that the health of the individual seeking care is the only interest that lawmakers could seek to protect in making laws that may burden the proclaimed right. Even if lawmakers were seeking to protect the individual’s health in creating some burden, it would have to be “the least restrictive means” available to achieve such protection. It would also be required not to “infringe on that individual’s autonomous decision-making.” (Like questions about compelling state interests generally, the vagueness of this element is a sure sign of future litigation to determine its meaning.)
- Allow the regulation of “the provision of abortion care after fetal viability,” while defining fetal viability. That definition is determined by “the professional judgment of an attending health care professional and based on the particular facts of the case,” and further requires the fetus to be able to survive “outside the uterus without the application of extraordinary medical measures.”
Analysis: Allowing the regulation of “the provision of abortion care after fetal viability” means that pre-viability laws would not be permitted.
Requiring viability to be determined by “an attending health care professional and based on the particular facts of the case” would presumably prevent anyone other than the pregnant individual’s doctor (or whoever the attending health care provider is) from determining fetal viability with respect to any particular pregnancy.
If “extraordinary medical measures” are required to allow the fetus to survive outside the uterus, fetal viability would not exist. (What those measures are is unclear; the vagueness of the term is another all-but-certain source of future litigation with respect to laws regulating abortion.)
- Not allow abortion bans if “in the professional judgment of an attending health care professional, [the abortion] is medically indicated to protect the life or physical or mental health of the pregnant individual.”
This means that in the event of any ban on abortions, a pregnant individual’s doctor (or whoever the attending health care provider is) could prevent the abortion ban from applying due to concerns about the pregnant individual’s life or physical or mental health.
- Prohibit the state from discriminating “in the protection or enforcement of this fundamental right.”
Analysis: The intended meaning of “discrimination” in this context is not clear. However, contemporary usage of the term often involves distinctions between classes of people made by the law. (For example, only men are required to register with the United States for selective service (the draft), and only minors are subject to compulsory education laws.) Contemporary usage of the term also involves unfair treatment by organizations, such as in accusations about an employer illegally firing someone based on race or gender. In the context of a proposal that repeatedly refers to “individuals,” a potential interpretation of this ban on discrimination in protection or enforcement is that the state will not be permitted to take age or sex into account in creating laws relevant to the proclaimed right or in protecting the right or enforcing those laws. In other words, laws for the protection of minors (including the parental consent law for abortions) may no longer be valid.
- Prohibit the state from penalizing, prosecuting or taking “adverse action against an individual based on their… pregnancy outcomes,” such as miscarriage or abortion.
Analysis: This means that pregnant individuals could not be prosecuted for suspected or actual abortions.
- Prohibit the state from penalizing, prosecuting or taking “adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.”
Analysis: This means that nobody – whether or not they are a health care provider – could be prosecuted for helping a pregnant individual with the proclaimed right of reproductive freedom (e.g., prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management and infertility care) with the individual’s consent. If a health care provider would otherwise be liable for malpractice related to applicable treatments of pregnant individuals, presumably they would be immune from state sanction for that malpractice. If the pregnant individual is a minor, presumably the person assisting the minor would be immune from prosecution for any role they played in, for example, facilitating an abortion.
- Invalidate state laws conflicting with the proposal.
Analysis: The ballot question, rather than the text of the constitutional amendment, makes this effect of the proposal clear. That effect logically follows from the fact that in conflicts between a law and the constitution, the constitution prevails.
If you have any questions or would like additional information about this topic, please contact:
- Jennifer Skeels at (317) 977-1497 or jskeels@hallrender.com; or
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