Groups say Michigan abortion amendment invalidates nearly 50 laws -- here’s what experts are saying

‘I think it’s a scare tactic’

Anti-abortion groups claim the new abortion amendment will invalidate nearly 50 laws, we talked to the experts and here is what we found out.

In a list obtained by Local 4, anti-abortion groups claim they’ve identified up to 47 laws they think would be repealed or rendered invalid if an abortion rights amendment is passed in Michigan.

The groups say it’s because of a section that says all laws surrounding pregnancy would be addressed under the new amendment.

On that long list are laws about parental consent, the age of consent to have sex, and even infanticide. The list also includes regulations about medical licensing, health and safety inspections, and who can perform abortions.

“I think the biggest concerns with proposal three are that it’s too confusing, too extreme, and too permanent,” said Christen Pollo, the spokesperson for Citizens to Support Michigan Woman Children, which opposes the initiative.

But experts say the claims may be dubious, at best.

A leading expert in the state on the intersection of reproductive health and the law, Ed Goldman, an OB/GYN professor and the director of the University of Michigan’s Program in Sexual Rights and Reproductive Justice, was among them.

“I think the basic premise is there are laws that prohibit things and there are laws that regulate things. Laws that regulate things don’t go away unless they are specifically reversed,” Goldman said.

Goldman says the idea is simple: Just because the amendment would be adding a right doesn’t mean it takes away other laws or regulations, like the claim that statutory rape wouldn’t be considered rape under the amendment.

“A law enshrining a right to an abortion does not mean that it is now legal to rape an 11-year-old, or for an 11-year-old to have consensual sex with somebody. Those laws have nothing to do with abortion. And they have everything to do with criminal law.”

Several anti-abortion sources disagreed, including Pollo, who said their findings were based in large part on the opinions of John Bursch. Bursch is a former Michigan solicitor general who now serves as senior legal counsel for the Alliance Defending Freedom. ADF is designated as a hate group by the Southern Poverty Law Center.

Enshrining abortion into the state constitution is popular among Michigan voters. According to the latest Local 4/Detroit News poll, 60.3% of voters said they would support a proposal to guarantee a right to an abortion, and many said the issue is likely to be a major motivating factor heading into the midterm elections.

But with just under two months to go until the midterms, Goldman said things won’t be slowing down.

“I think it’s a scare tactic,” Goldman said. “I think the big fight, now that the Supreme Court has allowed both voting and abortion petitions to be on the ballot, is you’re going to hear a lot of, ‘oh, my god, this sky is falling! If you vote for this, this is what’s going to happen,’ and it’s just not true.”

Michigan Proposal 3, Right to Reproductive Freedom Initiative (2022), amendment text:

Article 1, Section 28 Right to Reproductive Freedom

(1) 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. An individual's right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means. Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.

(2) The state shall not discriminate in the protection or enforcement of this fundamental right.

(3) The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion, nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

(4) For the purposes of this section:

A state interest is "compelling" only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual's autonomous decision-making.

"Fetal viability" means: the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures.

(5) This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of this section.[11]

Michigan Supreme Court

About the Authors:

Grant comes to Local 4 from Oklahoma City. He joins the news team as co-anchor of Local 4 News Today weekend mornings and is a general assignment reporter.

Morgan is a Digital Editor and has been with WDIV since May of this year. She is also studying political science and communications at Wayne State University.