Analysis of the Abortion Amendment

How RFA’s Amendment Would Work

On January 7, the Reproductive Freedom for All coalition announced they seek to add an amendment to the Michigan Constitution allowing unlimited abortions. The coalition’s leaders are Planned Parenthood, the ACLU, and an organization called Michigan Voices.

It’s important for all Michigan citizens to understand clearly what this confusing amendment would do, because it goes far beyond just abortion. Let’s go through each section of their proposal, trying to use simple language to explain how it would work.

To quickly summarize, this proposed amendment is written so broadly and so poorly worded that it would harm every state law on abortion and everything else related to pregnancy. The only limit is consent, which is not limited to adults by the amendment.

Reproductive Freedom for All Amendment Text

Click here to see an official copy of the text.

(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.

The amendment specifically says it will impact ALL matters relating to pregnancy, and lists several examples. While sounding very tame—who would disagree that a mother should be able to make a birth plan?—these words have extremely far-reaching consequences. Though not included in the list, “sex” is obviously related to pregnancy. Individual is not defined as to age, meaning the provisions in this amendment could apply to children as well as adults.

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.

This is the same basic legal standard as the federal Religious Freedom Restoration Act. However, on the federal level, a “compelling state interest”—something government must do to fulfill their basic duties and purpose—is general and interpreted by judges. This amendment specifically defines a compelling state interest below, severely restricting any possible law or regulation.

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.

This confusing language appears to allow late-term abortion bans, but by introducing a “mental health” exception, it would allow late-term abortions for practically any reason. Notice that it does not mention doctors, but “health care professional.” For example, a dentist could approve a late-term abortion on mental health grounds—and even perform one with no consequence, as you will see below.

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

This is incredibly vague. What does “discrimination” mean, exactly? Age discrimination is a real thing, so does this mean everything in the amendment applies to children? Rights are typically things that protect you from government prosecution, but this amendment says this right must be enforced by state—enforced against who? Parents? Doctors and nurses? A “right” is not supposed to give some people the ability to hijack a constitution and the government to gain control over other people.

(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.

This section could stop investigations of infanticides. For example, if someone gives birth and then abandons the baby in the trash, the state can’t even investigate the situation because investigation is an “adverse action” against a “perceived pregnancy outcome.” Back when abortion was illegal in Michigan, women were not investigated for miscarriages, but infanticides do occur today and any such “alleged pregnancy outcome” absolutely should be investigated and prosecuted if proven in a court of law. People don’t have a right to kill a newborn baby, but this amendment could give them one, and make the state enforce it.

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 could stop the state from even investigating someone who assists with an abortion. A school counselor could take a 13-year-old girl to get an abortion without telling her parents, and there is nothing her parents could legally do—if they ever find out. An untrained employee at an abortion facility could perform an abortion, and health and safety regulators could be powerless to address it.

(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.

This section is the key to invalidating so many laws. Any existing law related to pregnancy, sex, abortion, sterilization, etc. has to overcome three separate obstacles.

First, the law can only be for the purpose of protecting “health,” which is not defined. So, for example, Michigan’s law which stops taxpayers from paying for abortions could be repealed, since the law is about protecting conscience rights. If a nurse doesn’t want to be forced to help perform a late-term abortion, their legal rights will not be respected.

Second, the law must agree with “accepted clinical standards of practice.” Who writes those for abortion procedures? The abortion businesses themselves. For example, they say screening women for coercion to prevent forced abortions isn’t “evidence-based,” so our state’s law requiring screening for forced abortions could be repealed and sex traffickers, abusive spouses, and incestuous relatives will be able to cover-up their crimes. Abortion businesses object to health inspections and safety regulations that other outpatient facilities are required to follow, so no health or safety regulations could survive. Waiting periods, requiring abortionists to give women the ability to see the ultrasound of her baby, informed consent before surgery: none of these laws will be accepted as clinical standards by abortion clinics. This gives abortion businesses ultimate control over state laws, not voters or their elected officials.

Third, and this is VERY IMPORTANT, no law on anything related to pregnancy can infringe on a person’s “autonomous decision making.” Well, every law infringes on someone’s decisions; a law preventing a restaurant from serving you raw meat infected with salmonella is infringing on their decision to serve it and your decision to buy it. Most people agree your county health department has a compelling state interest in stopping people from dying by food poisoning.

This means that the amendment makes consent the only legal limit. If someone convinces a child to be sterilized, the parents have no say. This applies to anything related to pregnancy. Laws preventing adults from having sex with children could be impacted, since sex is related to pregnancy and it never defines individuals as adults. If a brother and sister want to have a child together, this amendment gives them an absolute right to do that. It doesn’t matter if the amendment authors didn’t intend to throw into question laws against statutory rape or incest, what matters is the confusing text of the amendment they wrote.

This one sentence in the amendment could have far-reaching effects for things beyond abortion or sex that aren’t immediately obvious. For example, our state’s ban on human cloning could no longer be enforceable, since cloning oneself is an autonomous pregnancy decision. Buying and selling babies through commercialized surrogacy could be legalized, and any health or safety regulation of the fertility industry could be impossible. If a mother wants to use her son’s sperm in IVF, the state not only can’t intervene, but must enforce her “right” against an IVF clinic doctor who objects to this unethical situation.

“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.

Fetal viability is defined as the point a child can survive outside the womb. The amendment changes this definition, so that any newborn with a significant illness or disability could be defined as a non-viable child. For example, an incubator in a neonatal intensive care unit is an extraordinary medical measure. Any “health care professional” could make this medical determination, not just doctors. If the woman and her health care professional decide to leave a disabled child to die, the state could not even be allowed to investigate this “alleged pregnancy outcome.”

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