16 News Now Investigates: Michigan’s Proposal 3

Published: Nov. 3, 2022 at 6:26 PM EDT
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(WNDU) - Michigan’s Proposal 3 would, if passed, make abortion a constitutional right in the state. The proposal language reads as follows:

“A proposal to amend the state constitution to establish new individual right to reproductive freedom, including right to make all decisions about pregnancy and abortion; allow state to regulate abortion in some cases; and forbid prosecution of individuals exercising established right.

This proposed constitutional amendment would:

  • Establish new 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;
  • Allow state to regulate abortion after fetal viability, but not prohibit if medically needed to protect a patient’s life or physical or mental health;
  • Forbid state discrimination in enforcement of this right; prohibit prosecution of an individual, or a person helping a pregnant individual, for exercising right established by this amendment;
  • Invalidate state laws conflicting with this amendment.”

Supporters of the proposal say will give women in Michigan the freedom to choose.

“This is the most enduring way that we can ensure that we are not going to lose the rights that we have had for 50 years under Roe v. Wade,” says Merissa Kovach, the legislative director for the ACLU of Michigan.

But those who oppose the ballot measure say it’s unsafe.

“It allows abortion through birth in our state as a constitutional right and it repeals health and safety regulations on abortion clinics, making abortions more dangerous for women,” says Christen Pollo, the spokeswoman for Citizens to Support MI Women and Children.

But for those concerned, the proposal makes it clear that further regulations can be implemented by saying it will allow the state to “regulate abortion after fetal viability”.

Karley Abramson is a research associate that focuses on health policy with Citizens Research Council of Michigan, a not-for-profit public affairs research organization. She says viability is defined differently than previous frameworks about abortion.

“Viability isn’t set at a certain number of weeks,” she explains. “It will depend on particular facts of the pregnancy. And it will depend on the assessment of the healthcare professional.”

Doctors advocating for abortion access say this proposal allows for personal choice in healthcare. Dr. Ajleeta Sangtani, MD, FACOG is an OB/GYN practicing in Ann Arbor. She says if Proposal 3 doesn’t pass, this could mean more risks for those vulnerable to negative health outcomes, or those without access to reproductive services.

“Patients that have resources will be able to receive the care that they deem is right for them and the patients that don’t have resources won’t be able to receive the care that’s right for them,” says Dr. Sangtani. “So I think what we will see is an increase in maternal mortality and that increase will worsen the disparities in maternal mortality that we already see.”

From 2011 to 2018, 102 women died of pregnancy-related causes in Michigan. That’s a little over 11 deaths per 100,000 live births. 62.3% of those deaths were determined to be preventable by the Michigan Maternal Mortality Review Committee.

Disparities do exist. Black women were 2.8 times more likely to die from pregnancy-related causes in Michigan from 2014 to 2018.

“So that’s another thing to consider if there’s no constitutional right to abortion just how that inequality might manifest as well,” agrees policy researcher Karley Abramson.

Those opposed to Proposal 3 are focusing many of their concerns on the end of the ballot measure.

“It’s confusing in that the final line says it repeals all state laws that conflict with it. The proponents of Proposal 3 have never come out with a list of what laws that might include,” explains Christen Pollo.

Legal research finds existing regulations on abortion in Michigan wouldn’t immediately disappear.

“When it comes to whether the laws become invalid nothing would be automatic, explains Karley Abramson. “So if the proposal were to pass, it would make that right to abortion and other reproductive care more secure, but how it would actually manifest and what the meaning of all of the language within the amendment would still be kind of up in the air or up to the courts to decide if it gets challenged in the future.”

Opponents say the proposal’s language is vague, but that may be because this is a constitutional amendment, not something passed by the Michigan Legislature.

“It’s not unusual to put those kind of broad goals in the constitution then to be later refined, says Abramson, the health policy researcher. “The constitutional amendment would be more of a first step to kind of developing the regulatory framework for access to abortion, not the last step.”

So what happens if Proposal 3 does not pass? It’s possible that a law that pre-dates Roe v. Wade would go into effect.

“Currently, Michigan does have a law, people hear about it being a 1931 law, but it actually originally established in 1846, that restricts abortion,” explains Abramson.

“The only permission for abortion is to protect the life of the mother,” adds Dr. Sangtani.

“So the severity of the individual’s health condition has to be pretty great to justify the procedure. There’s no exception for rape or incest with abortions, current law,” says Abramson.

“Mortality rates for abortion is lower than the mortality rate for carrying a pregnancy. So the question becomes how much of your life has to be risked in order for you to qualify for the procedure,” says Dr. Sangtani.

“I took an oath as did all doctors to protect our patients and to protect the health of our patients. If I am unable to offer abortion as an option to my patients, it takes away my ability to do that and act in the wellbeing in my patients.”

But even if Proposal 3 is rejected by voters, that’s not the end of the story. The courts could still rule in favor of abortion access.

“The Michigan Court of Claims has already sided with the plaintiff, with Planned Parenthood, basically saying that the right to bodily integrity that has been established in Michigan already encompasses the right to abortion,” explains Abramson. “If the Michigan Supreme Court agrees with the Court of Claims, even if Prop 3 fails, they might still find a narrower right to abortion existing in the Michigan Constitution.”

But first, voters will get a chance to make their voices heard on the issue.

You can read all of the research conducted by the Citizens Research Council of Michigan here: https://crcmich.org/publications/statewide-ballot-proposal-22-3-reproductive-freedom-for-all

And read the full details on Proposal 3 from the Michigan House here: https://www.house.mi.gov/hfa/PDF/Alpha/Ballot_Proposal_3_of_2022.pdf