Abortion foes launch campaign against ‘anything goes’ Michigan ballot measure

LANSING — Anti-abortion activists are criticizing a ballot measure to write reproduction rights into the Michigan Constitution as an “anything-goes” effort that would allow for unregulated abortions — an argument that advocates say is fearmongering.

During a media conference Tuesday, members of the anti-abortion coalition Citizens to Support MI Women and Children slammed as “dangerous” the constitutional amendment proposal Reproductive Freedom for All.

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The comments came as the anti-abortion coalition on Tuesday announced they are launching a campaign to “educate voters” not to sign petitions for the amendment.

Read the petition here. 

“It protects grossly negligent abortion providers. Women will be victimized by them and they will have no legal recourse,” John Bursch, senior counsel for conservative legal advocacy group Alliance Defending Freedom, said during the Tuesday event. 

Abortion rights advocates on Tuesday dismissed the notion as misleading and an attempt to distract voters from the goal of preserving rights that have been guaranteed under Roe v. Wade, the 1973 landmark case that legalized abortion nationwide.

“All of Right to Life’s … attacks on this constitutional amendment are attempts to instill fear in Michiganders and are tactics really used to distract away from affirming that every individual has this right,” ACLU-Michigan Deputy Legal Director Bonsitu Kitaba told Bridge Michigan.

The debate has intensified in recent months, as the nation prepares for the potential downfall of Roe.

The U.S. Supreme Court appears poised to strike it down, as signaled by a draft opinion by conservative Justice Sam Alito leaked earlier this month. If Roe falls, a 1931 law criminalizing abortions would likely take immediate effect in Michigan. 

Abortion rights advocates in the state are trying to keep abortion legal through multiple avenues, and they’ve had some success. 

The Michigan Court of Claims blocked the 1931 law last week, citing its “irreparable harm” to patients seeking abortion services. Meanwhile, the constitutional amendment received a boost of 25,000 volunteers the week following the leak of the draft opinion.

Anti-abortion groups have ramped up efforts against the constitutional amendment proposal and seek to lift the injunction on the 1931 law. 

Bursch, the Alliance Defending Freedom attorney, helped draft a complaint Friday asking the state Court of Appeals to reverse the injunction on the 1931 abortion ban, arguing the decision was “inappropriate.”

The anti-abortion group cited four major issues with the constitutional amendment on Tuesday. 

Here’s a look at the arguments:

Minors’ access to abortion

Minors could get abortions without parental consent because the amendment leaves out age restrictions, Bursch said.

“If you have a 12-year-old at home and they’re going to be getting their tonsils removed, you absolutely need to give an informed consent and sign the form as their parent in order to have a doctor perform that procedure,” Bursch said. 

“That same 12-year-old, if they were to get pregnant, would be able to go to an abortion clinic and have the life of their child terminated without their parent even being informed about that fact.”

Backers of the constitutional amendment don’t dispute the claims, saying that the proposal guarantees the right to reproductive health from birth including not only abortion but also miscarriage care and contraception. 

“Our state has put in place substantial barriers that really deprive young people of autonomy to decide what they can do with their own bodies and has forced many young people to carry pregnancy that they are just not ready for,” Kitaba said.

‘Any healthcare professional’

The petition restricts the state from regulating abortions if an “attending health professional” deems the pregnancy harmful to physical or mental health. 

The proposal defines “fetal viability” as the moment when a fetus is able to survive outside the womb without “extraordinary medical procedures.”

Bursch argued any health professional could provide a wide range of reasons to justify an abortion under the petition. For example, he said, an abortion could be justified as long as a certified “message therapist” argues in favor of it. 

“You can have a fully-formed baby at nine months, the mother’s due date has passed…and if she comes to a health care professional and says, ‘I’m anxious about having this child, I think I want to have an abortion,’ she can do that,” Bursch claimed.

The argument is “ridiculous,” Kitaba said. The petition language refers to “attending” health professionals and requires them to use “professional judgment” to determine if someone’s pregnancy poses medical harm.

“This is a very science-based medical standard that a doctor, who has an obligation to their patient and ethical duties, has to fulfill,” she said. “I don’t know if a massage therapist can make such judgments.” 

Abortion at all stages of pregnancy

Erin Mersino, trial counsel at the conservative Christian legal firm Thomas More Law Center, said Tuesday event the proposal “has been extended in practice to (allow for) an abortion during all nine months of pregnancy.” 

Again, there is no dispute on that point. But Kitaba said the amendment is written to ensure pregnant people who need a late-term abortion out of medical reasons receive one. 

“To paint the picture that this is anything but a serious medical decision between a doctor and patient is just simply an inaccurate description of how this actually happens in reality,” she said.

Abortions performed beyond 21 weeks’ gestation are rare. In 2019, for example, almost 93 percent of the 629,898 abortions nationwide were performed no more than 13 weeks’ gestation, according to the Centers for Disease Control and Prevention. 

A little over 6 percent were performed between 14 and 20 weeks of gestation and less than 1 percent were performed beyond 21 weeks.

Evading punishment?

The petition also bars the state from prosecuting “someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.” 

“If you go in and you get a back-alley abortion, that someone cannot be prosecuted if they botched an abortion, or even if they killed someone,” Bursch argued.

Kitaba said illegal abortions would not exist because the care would become a constitutional right. The constitutional amendment also would not protect people from criminal charges laid out in state law.

“Just because it’s a constitutional amendment, it doesn’t permit illegal behavior,” she said.