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Proposal 3 passes, enshrines abortions rights in Michigan Constitution

Michigan voted to enshrine abortion access and broad reproductive rights in the state constitution on Tuesday. In what supporters described as a “historic victory,” the vote was the culmination of a massive campaign effort from both sides in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade. 

“Today, the people of Michigan voted to restore the reproductive rights they’ve had for 50 years,” said Darci McConnell, a spokesperson for the Prop 3 campaign, in a statement early Tuesday morning. “Michigan has paved the way for future efforts to restore the rights and protections of Roe v. Wade nationwide.”

The passage of Proposal 3 also nullifies a 1931 state law criminalizing abortion, which had become the subject of numerous court battles in recent months. In September, a Court of Claims judge issued an injunction against enforcement of the ban. But support for the ban from Republican legislators and some county prosecutors all but guaranteed further appeals.

The proposal itself establishes an “individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility.”

But opponents of Prop 3 claim the measure as “radical” and “extreme,” arguing it would allow abortions past the point of fetal viability and overturn a state law requiring parental consent for minors seeking an abortion.

“We are grateful to the thousands of volunteers and donors who helped us do the hard work of attempting to educate Michigan voters about this proposal,” said Christen Pollo, a spokesperson for Citizens to Support MI Women and Children, which opposed Prop 3. “Unfortunately, we were unable to withstand the onslaught of money that poured into Michigan from New York and California mega-donors, and the misleading and dishonest advertising about what this confusing, extreme proposal actually did.

“We will hold the sponsors of this proposal accountable for the claims they made, that no law beyond the 1931 law would be invalidated. We expect the authors of this proposal to respond to the inevitable flood of litigation that will come with the amendment and insist that they fight for laws like parental consent to be upheld, and they promised the people of Michigan it would be.”

The fight over Prop 3 dominated the airwaves in the state for months as the campaigns poured millions of dollars into advertising. The issue of abortion itself largely defined the midterm elections in Michigan, starting with the record-breaking 730,000 signatures gathered to put the proposal on the ballot. And a series of confusing, conflicting state court rulings over the summer left the legal status of abortion at times precariously uncertain. At one point, there was a day where abortion was legal in Michigan at breakfast, illegal by lunch, and then legal again by dinner.

“I'll never forget the day that I had to tell an entire waiting room full of patients that we weren't going to be able to see them that day, because of the flip in the the court's decisions that had happened that day,” said Dr. Audrey Lance, an OB-GYN at Northland Family Planning in metro Detroit. “The devastation, the crying, the gasps that I heard from patients that day; I am just so glad that this is just going to be taken out of that limbo situation, and just be medical care that we can just provide. And that patients don't have to worry from moment to moment if they are going to be able to get this care anymore.”

Lance and other abortion providers have witnessed a record number of out-of-state patients coming to Michigan, seeking the legal abortions they can no longer get at home.

“I see patients from Kentucky, from Tennessee, from Ohio, Indiana, Wisconsin,” she said. “I've even seen patients from Texas. … I saw a patient a couple of weeks ago from Kentucky who was about 20 weeks pregnant, and had a baby with a lethal fetal anomaly. And she had to travel two states away to get this care. And I'm just devastated for patients who are in those situations. And I'm also so relieved that our patients in Michigan are not going to have to go through that.”

Courts will likely decide the full meaning of Prop 3

But the passage of Prop 3 is likely only the beginning of a new slate of legal disputes. “As much of the language is broad, undefined, and situation-specific, the parameters of the right will be determined by potential legal challenges,” an analysis by the Citizens Research Council of Michigan found. For instance: when the amendment says “Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters related to pregnancy,” does that extend to minors?

And when it says “The state may regulate the provision of abortion care after fetal viability,” except for when an attending health care professional believes an abortion is “medically medically indicated to protect the life or physical or mental health of the pregnant individual,” which “physical and mental health conditions” will the courts consider “severe enough to justify an exception?”

What remains to be seen is how courts will apply the language of the newly established amendment, with the possibility that the state’s constitution may now “protect a host of other medical services that no state has ensured before.”

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Kate Wells is a Peabody Award-winning journalist and co-host of the Michigan Radio and NPR podcast Believed. The series was widely ranked among the best of the year, drawing millions of downloads and numerous awards. She and co-host Lindsey Smith received the prestigious Livingston Award for Young Journalists. Judges described their work as "a haunting and multifaceted account of U.S.A. Gymnastics doctor Larry Nassar’s belated arrest and an intimate look at how an army of women – a detective, a prosecutor and survivors – brought down the serial sex offender."