Michigan residents will vote on Proposal 3 on Tuesday, which would add an amendment to Michigan’s constitution allowing abortion throughout pregnancy if necessary to protect a woman’s “life or physical or mental health.” The ballot proposal bears a striking similarity to a Supreme Court case decided on the same day in 1973 as Roe v. Wade, which legalized abortion on demand in the United States through broadly defining “health.”
In Roe v. Wade, the court held that states could issue virtually no regulations for first-trimester abortions and some regulations for second-trimester abortions, but only for the purpose of protecting the “health” of the mother. In the third trimester, when the child is viable, the 1973 court ruling allowed states to “proscribe” abortion, or make it illegal, contingent on the existence of exceptions to protect the mother’s life and “health.”
Issued on the same day as Roe, the lesser known Doe v. Bolton case defined the “health” of the mother as “all factors” which affect the woman, including “physical, emotional, psychological, familial, and the woman’s age.” This legalized abortion on demand for all reasons up to birth on the federal level.
When the court overturned the Roe decision this summer and returned the right to legislate abortion to the states, Michigan’s 1931 ban on all abortions with only an exception for the life of the mother kicked in. A state court judge placed a permanent injunction on enforcing the law on Sept. 7, but that was not enough for Michigan pro-choicers.
“With today’s decision, Michigan’s antiquated 1931 law banning abortion without exceptions for rape or incest and criminalizing doctors and nurses who provide reproductive care takes effect,” Michigan Gov. Gretchen Whitmer (D.) said in a statement. “For now, a Michigan court has put a temporary hold on the law, but that decision is not final and has already been challenged.”
Abortion advocates started working on a ballot proposal to enshrine the right to abortion in Michigan’s Constitution in anticipation of the Dobbs decision. Prop. 3 would flip Michigan from one of the most pro-life states in the country to the most radically pro-choice. It would invalidate all of Michigan’s pro-life legislation, eliminating laws requiring parental consent for minors to get abortions, rules that only a licensed physician can perform an abortion, and the state’s ban against partial-birth and late-term abortion.
Prop. 3 would establish “a new individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy.” It allows the state to “regulate abortion after fetal viability,” but prohibits laws preventing abortion if a “health care professional” deems it to be “medically needed to protect a patient’s life or physical or mental health.” This broad, vague clause prevents the legislature from passing bills regulating abortion in any way, as anything could be construed as necessary to protect physical or mental health, including anxiety or stress about the pregnancy.
Michigan law includes anyone who is “licensed or registered or otherwise authorized” under article 15 of the Michigan Public Health Code under the definition of “health care professionals,” enabling a wide array of individuals to both determine if abortion is necessary and perform the procedure. This applies to chiropractors, dentists, marriage therapists, optometrists, physical therapists, counselors, athletic trainers, and many others.
In Federalist 62, James Madison warned of the dangers of laws that are “so incoherent that they cannot be understood.” The Founders were aware of the consequences of vagueness and in the case of Prop. 3, these consequences are a matter of life and death for thousands of babies. Doe v. Bolton’s definition of health was responsible for nearly 50 years of violence against the unborn in America.
On Tuesday, by voting “no” on Proposal 3, Michiganders have the opportunity to prevent another broad and unclear definition of health from denying the right to life to unborn children.