The Ambition of Michigan Abortion Rights

But look at the language, our correspondents say. After fetal viability, the proposed amendment would guarantee abortion access whenever “an attending health care professional” determined it to be “medically indicated to protect the life or physical or mental health of the pregnant individual.” One red flag is the undefined exception for “mental health,” which could be misused to justify abortions months after viability for anyone who’s in distress.

Another point of concern is that the amendment asserts in expansive text that “every individual has a fundamental right to reproductive freedom.” Could state courts interpret “every individual” to include pregnant minors, overruling Michigan’s parental consent law? If abortion is enshrined in the constitution as a “fundamental right,” would that invalidate any attempt by the Legislature to single out such procedures for denial of public funding or support?

It’s difficult to know exactly how Michigan’s judiciary could broaden the amendment’s effect, but voters who scrutinize the text on the ballot could end up unpleasantly surprised. State supreme courts have a record of creative legal thinking in the service of favored political outcomes, and we can cite recent legal gymnastics in North Carolina and Pennsylvania. Critics of the Michigan proposal have reason to be suspicious of how it brushes past points of public contention.

In any case, these details only heighten the responsibility of Michigan Republicans to find an alternative policy that they can defend to the electorate. Last month Kansas voted to keep a constitutional protection for abortion, 59% to 41%. The lesson for pro-life advocates is that even in a red state like Kansas, if voters are given an all-or-nothing choice on abortion policy, they might well go for all.

The Michigan amendment isn’t in the center of public opinion, but neither is the state’s extant 1931 law, which bans abortion with no exception for rape victims. If Republicans want to beat the constitutional amendment at the ballot box, now is the time to tell the public what kind of policy they intend to enact instead.