On November 8th, Michigan citizens will vote on whether or not to adopt Proposal 3, a constitutional amendment to legalize abortion. But what about the claims you’ve heard from conservative sources? Does Proposal 3 legalize late-term abortions? Does it allow abortion and sex change therapy on minors without parental consent? Does it allow anyone to perform an abortion?
Today, I give you the answers. No propaganda, no vague nonsense, no misdirection. Just the facts. I highly recommend you also read the proposal yourself by CLICKING HERE. Let’s get to work.
Does Prop 3 Invalidate Existing Laws?
You’ve probably heard liberals claim that Prop 3 won’t change any existing laws. “It just affects abortion!” they say. This is patently false, as you can clearly see in the proposal language. The introductory section reads:
Constitutional Amendment to: …invalidate all state laws that conflict with this amendment.
This is not just an addition to our Constitution for abortion only. Prop 3 is specifically designed to invalidate existing laws that conflict with it. Keep that in mind. We’ll come back to it.
Now, let’s go over the body of the proposal language. Here’s the first section:
(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.
Sounds tame enough, right? It seems like they just want women to be able to make all their own decisions regarding pregnancy. Who could argue with that? The problem is how vague the language is. This ambiguity is present throughout the proposal. Whether you believe it’s intentional or not, it opens the doors to some truly horrible things (besides just abortion).
First, this applies to “every individual.” Not just mothers. Not just women. Not just adults. It applies to a 6 year old boy just as much as a 36 year old woman. That’s important. It shows their fear of affirming the biological fact that only women can have pregnancies to begin with. But that’s not all.
“Every individual” is said to have the right to “reproductive freedom.” What does that mean? They define it as the right to make decisions about “all matters relating to pregnancy.” That’s quite broad. After all, sex is directly related to pregnancy. Can a 6 year old boy consent to sex under this proposal? We don’t know. What is clear is their list of examples, one of which is “sterilization.”
Already, we have a case that this proposal would reasonably allow for a 6 year old boy to choose to sterilize himself for life. That’s not conjecture or me twisting words. That’s explicitly allowed in the actual language. Are you starting to see the problem?
Conservatives say Prop 3 allows for late-term abortions. Is that true? Let’s review the language:
…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.
At first, this appears to allow for abortion restrictions after “fetal viability” (defined later on). But this is made irrelevant by the exception for “mental health.” Under Prop 3, anyone could get a late-term abortion as long as their “attending health care professional” said it would protect their mental health. The baby can be perfectly healthy and fully developed, yet still killed at the last second because the mother has anxiety.
Not Just Doctors
Notice they don’t say “doctor,” but “health care professional.” This is important. It means anyone working in healthcare could approve of late-term abortions on “mental health” grounds. That applies to dentists, dietitians, and even veterinarians. But it gets worse. Anyone could perform an abortion as well, as we’ll see in a minute.
(2) The state shall not discriminate in the protection or enforcement of this fundamental right.
I won’t focus on this section too much, but the wording is a bit strange. Since when are rights enforced by the state? Having a right usually means you’re free to do something without the state impeding you. Does this section imply that the state could arrest people who try to discourage abortion or sterilization, such as parents or counselors? We don’t know.
(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.
On the surface, this seems to prevent the state from punishing women for miscarriages. That’s a good thing, right? Yes, but this is a solution for a problem that does not exist. The danger is that this prevents prosecution for any “pregnancy outcome,” real or alleged. This effectively legalizes infanticide. A woman who blatantly murders her baby after it’s born could not be investigated, as this would be an “adverse action” against an “alleged pregnancy outcome.” Nobody should be able to kill a newborn baby, and (almost) no liberal will argue for that. But Prop 3 could make the state enforce it as a right.
Anyone Can Perform Abortions
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.
This language says the state can’t do anything to prevent anyone from “assisting” an abortion (or other “reproductive freedom”). This allows anyone to perform an abortion as long as the pregnant woman consents. This is even less strict than “health care professionals.”
Invalidating Existing Laws
Now let’s review the language that raises the most questions about existing laws and regulations (such as parental consent):
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.
At first, this seems to allow for restrictions under certain circumstances. But what does “a compelling state interest” mean? This phrase is part of the strict scrutiny test, which is a judicial standard applied when a law might conflict with the Constitution. For the law to survive, it must be crafted to further a “compelling state interest,” such as protecting public health and safety or regulating violent crime. Not even a constitutional right can prevent the government from carrying out these essential functions. This is why crimes such as defamation are illegal despite the right to freedom of speech, for example.
If the writers of Prop 3 wanted these new “reproductive freedom” rights to be treated like all other constitutional rights, they would have stopped there. But they didn’t. They added the following language, drastically narrowing the definition of a “compelling state interest.”
(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.
We are given three conditions that must be met. For an existing law to restrict or regulate abortion, sterilization, or any other “reproductive freedom,” it must:
- Be for the purpose of protecting the health of the individual
- Be consistent with clinical standards of practice
- Not infringe on the individual’s decision-making
First, restrictions must be for the purpose of protecting the health of the individual. Does this include mental health? Again, we don’t know. This could invalidate laws preventing tax money from funding abortions, as they protect the conscience of taxpayers and have nothing to do with health. Theoretically, a doctor (or anyone for that matter) could not refuse to perform a late-term abortion on grounds of conscience or religion since this also isn’t concerned with health.
Second, restrictions must be consistent with “accepted clinical standards of practice.” If the “practice” is abortion, who writes these standards? The abortion clinics themselves. This means the abortion industry gets to dictate how abortions are done and remove anything that impedes their business. They make a lot of money from this, meaning they are incentivized to make abortions as expedient as possible. They could ignore health and safety regulations. They could ignore screening requirements designed to ensure that the woman isn’t being coerced into an abortion by an abuser or sex trafficker. They could ignore waiting periods and informed consent laws designed to educate women on the risks of and alternatives to an abortion. It gives abortion providers the power to completely deregulate abortion, making things more dangerous for women.
Third, restrictions must not infringe on the individual’s decision-making. This language is extremely broad, making consent the only real requirement for exercising “reproductive freedom.” Remember, “reproductive freedom” means anything related to pregnancy. A brother and sister could choose to have a baby together. A child could choose to be sterilized for life. A child could consent to sex with an adult, since sex is related to pregnancy. Michigan’s ban on cloning could be nullified, since this is also related to pregnancy. The open-ended language allows for so many horrific possibilities with no room for common-sense regulations applicable to other constitutional rights (via strict scrutiny).
One last section to review. Remember the exception for fetal viability I mentioned earlier? Here’s their definition of the term:
“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.
This seems correct at first glance, but upon further inspection, it actually broadens the definition beyond its original meaning. If you look it up online, you’ll see that fetal viability is defined as “the ability of a human fetus to survive outside the uterus.” That’s it. But Prop 3 adds the condition, “without the application of extraordinary medical measures.” This means babies who could theoretically survive outside the womb with the aid of advanced medical assistance are not protected.
The left’s rebuttal to the arguments I’ve made here is that Proposal 3 is only designed to protect a right to abortion. They say the intent isn’t to legalize statutory rape, sterilization of minors, infanticide, or incest. They say they don’t want to erase parental consent or religious freedom. So how do they justify the broad language in the proposal?
They usually bring up other constitutional rights, such as the right to bear arms. The Michigan Constitution says that every person has this right, yet we know kids are excluded and guns are still regulated. Doesn’t the same logic apply to Prop 3?
No, it doesn’t. Regulations on the right to bear arms are tested under their own standard of “historical tradition of firearm regulation.” In addition, this and all other constitutional rights can be limited by regulations that further a “compelling state interest,” such as public health and safety. But Prop 3 goes out of its way to redefine “compelling state interest” such that any law infringing on an individual’s “decision-making” is invalidated.
Parental consent laws might infringe on a child’s decision to have an abortion or sterilize themselves. Statutory rape laws might infringe on a child’s decision to have sex with an adult. Informed consent laws might infringe on a woman’s decision to have a late-term abortion. All of these regulations (and more) have to be thrown out.
This is why Prop 3 is so radical. This is why its defenders rely heavily on “intent” to claim that future case law won’t affect anything but abortion. But how can they be sure? It’s funny. Conservative justices are usually the ones who interpret based on original intent. Liberal justices—the ones Prop 3 advocates will vote for—frequently argue that the Constitution should be interpreted according to the times. What happens when the times change? Why leave the possibility open for Prop 3 to be abused at all? Why not clarify the ambiguous language? Why redefine “compelling state interest?” They don’t have an answer.
The Bottom Line
Even if you believe abortion should be legal in some cases, Prop 3 is extremely problematic. What is meant and what is said are very different things. Aside from the goal of legalizing abortion, the problem with Prop 3 is that its language is far too broad. It fails to clarify questions about the age of those affected, the limits of “reproductive freedoms,” and the state’s ability to interfere. It explicitly removes nearly all restrictions on abortion and anything else related to pregnancy. As written, Prop 3 is a disaster. It’s unprofessional at best and downright villainous at worst.
I will be voting NO on Proposal 3 this coming Tuesday. Enter your email if you want to be notified when my next post goes live. Thanks for reading. Godspeed.