A crowd marched in front of the U.S. Supreme Court during the 2020 March for Life on Jan. 24. Courtesy | Paula Skwarek

Michigan res­i­dents are fighting for a dis­mem­berment abortion ban act through citizen-ini­tiated leg­is­lation, leading the way for other pro-life ini­tia­tives across the country.

“Right to Life of Michigan is the most pro­lific orga­ni­zation in the state’s history with regard to this par­ticular pro­vision,” said Genevieve Marnon, leg­islative director at Right to Life of Michigan. “This is our fifth cit­izens-ini­tiated piece of leg­is­lation.” 

While Right to Life of Michigan advo­cates for lim­i­ta­tions on abortion pro­ce­dures, Democrats in the Michigan House of Rep­re­sen­ta­tives are proposing wide­spread abortion access. Gov. Gretchen Whitmer joined members of the House Demo­c­ratic Caucus on Oct. 29, 2019, to propose the Michigan Repro­ductive Health Act. 

Mean­while, at the national level, the U.S. Supreme Court will hear oral argu­ments for its first abortion case that includes Asso­ciate Justice Brett Kavanaugh on the bench on March 4, and could poten­tially hear another case regarding a Michigan abortion law in the future.

Repro­ductive Health Act

According to a statement released by the Michigan House Democrats, the RHA was pro­posed to “repeal out­dated and uncon­sti­tu­tional pro­hi­bi­tions on repro­ductive health care,” referring to a 1931 law that makes abortion illegal in Michigan.

The RHA is a set of sweeping laws that would remove required parental noti­fi­ca­tions for minors, elim­inate a required 24-hour waiting period after requesting an abortion, allow abortion clinics to avoid inspection, and get rid of mandatory screenings for abortion coercion. 

In Michigan, a pregnant person’s options are limited by policy, and that makes it harder to give patients the best pos­sible care,” said Dr. Sarah Wallett, chief medical officer for Planned Par­enthood of Michigan, at an October 2019 press con­ference. “People who make the decision to have an abortion should be able to access it without obstacles that do nothing to improve their care.”

Michigan is among nine states that have pre-Roe v. Wade abortion bans on the books. These could be enforced if Roe is over­turned.

Marnon said the group is leading pro-life ini­tia­tives in the state and across the country.

“We have the best pro-life laws in the United States,” Marnon said. “Alabama and Georgia have nothing on us.”   

The 1973 Roe decision legalized abortion in all 50 states. Marnon, however, said Democrats are con­cerned that with an increas­ingly con­ser­v­ative Supreme Court, Roe may be at risk of being over­turned. 

If the Supreme Court were to overturn Roe, the legality of abortion would be left to the indi­vidual states, estab­lishing a legal path for states’ pre-1973 abortion bans, like Michigan’s, to take effect.

“Pro-abortion activists know that Roe’s days are num­bered and that Roe was poorly decided and shouldn’t stand,” Marnon said. “That’s why they want to make Michigan a pro-abortion state.”

State Rep. Eric Leutheuser of the 58th dis­trict said he doesn’t see the RHA gaining traction in the leg­is­lature. 

“It’s not going to go any­where,” he said. “It was a reaction to leg­is­lation being passed in other states.”

New York, Vir­ginia, and Illinois signed their own repro­ductive health acts into law last year. These states now have few restric­tions and stan­dards on abor­tions.

“It’s become a game of copycat,” Leutheuser said. “States with Demo­c­ratic gov­ernors and leg­is­lators are trying to show their pro-choice bona fide by intro­ducing leg­is­lation like this.”

Leutheuser said there is no expec­tation that this bill will get hearings or move through the houses, as both have a pro-life majority. 

“It’s a sym­bolic gesture,” he said. “It’s not lost on anyone that it’s an election year and could be used to do fundraising and shake the money tree for pro­gressive can­di­dates.”

Dis­mem­berment Abortion Ban Act  

While Whitmer helped propose the RHA, pro-life groups are advo­cating to get other leg­is­lation on the books that would pro­hibit the dis­mem­berment abortion pro­cedure. 

Vol­un­teers across Michigan col­lected more than 300,000 sig­na­tures from res­i­dents to ban dis­mem­berment, a common method of per­forming late-term abor­tions. A dis­mem­berment pro­cedure is defined by the law as “any instrument, device, or object to dis­member a living fetus by dis­ar­tic­u­lating limbs or decap­i­tating the head.”

The sig­na­tures could lead to a bill that would add an addi­tional clause to the 2011 partial-birth abortion ban law, which allowed for dis­mem­berment abor­tions. The new clause would pro­hibit the use of dis­mem­berment abor­tions, com­monly per­formed during the second trimester. 

With the addition of the clause, an abor­tionist found guilty of per­forming this oper­ation would wind up with a prison sen­tence of up to two years and a fine of $50,000.

As opposed to the tra­di­tional method of passing a bill through both houses and the governor’s office, Michigan Right to Life is using citizen-ini­tiated leg­is­lation to get around Whitmer’s promised veto. 

“If the leg­is­lature is not being responsive, cit­izens with wide grass­roots support can have petition drives,” Leutheuser said. 

A minimum of 8% of the votes cast in the most recent guber­na­torial election must be col­lected during petition drives. If the sig­na­tures are deemed valid, two options are available. Either the bill can go to a public vote on the ballot, like Pro­posal 1 that legalized mar­i­juana, or a bill can be sent to both houses and upon winning a simple majority, skip the gov­ernor and become law.

Right to Life of Michigan has used the latter option with success four times pre­vi­ously, including to ban partial-birth abor­tions and take abortion out of insurance plans. 

“It’s what they call ‘veto-proof,’” Leutheuser said. “She doesn’t have the oppor­tunity to veto it.”

Before a petition drive begins, Right to Life of Michigan seeks to pass the bill through normal routes. 

“We have always gone through the regular leg­islative routes first,” Marnon said. “In this par­ticular case, we did not get the veto, but we got the votes in both chambers, so we know we have the votes.”

Based on the 2018 election, the minimum sig­na­tures needed for this drive was 340,047. On Dec. 23, Right to Life of Michigan turned in 379,418 sig­na­tures to the Michigan Bureau of Elec­tions. 

The bureau will decide in the next few weeks if the petition drive met the quota. If so, the leg­is­lature will have 40 days to vote on it again. 

“We voted on it last term,” Leutheuser said. “If we vote in the affir­mative again, it becomes law.”

Right to Life of Michigan is antic­i­pating chal­lenges from Democrats over the bill. 

“Planned Par­enthood or the League of Women Voters will likely file a lawsuit that this is an uncon­sti­tu­tional law,” Marnon said. 

Michigan Attorney General Dana Nessel said she will “never enforce” this law if chal­lenged by a judge. Marnon said this is “not their first rodeo” and are pre­pared for Nessel’s unwill­ingness. 

“We put in inter­vener lan­guage,” Marnon said. “It allows for members of the house or the senate to intervene on behalf of the state and defend this law, so we don’t have to rely on this par­ticular attorney general.”

Marnon noted it is likely a judge will deem this law uncon­sti­tu­tional because it is a pre-via­bility ban and current law restricts banning abor­tions before via­bility.

“There are other ways to kill babies in the second trimester,” Marnon said. “They will claim that it’s an undue burden for women to have to go to the alter­native routes of abortion.”

Since 1992, courts have used the undue burden standard as the test to evaluate whether state laws on abortion are con­sti­tu­tional. In the 1992 case Planned Par­enthood v. Casey, the U.S. Supreme Court wrote “an undue burden exists and therefore a pro­vision of law is invalid if its purpose or effect is to place sub­stantial obstacles in the path of a woman seeking an abortion before the fetus attains via­bility.”

If a judge strikes the law down, an appeal will be sent to the Sixth Circuit Court of Appeals in Cincinnati, Ohio. 

“It’s also likely that the sixth circuit will deem it to be uncon­sti­tu­tional, but we don’t know that for sure,” Marnon said. “They have not had a dis­mem­berment ban come before the sixth circuit before.”

A dis­mem­berment ban like Michigan’s has been passed in 12 other states and was struck down in 10 of them. Mis­sis­sippi and West Vir­ginia didn’t chal­lenge the law because neither have an abortion clinic in the state that uses dis­mem­berment methods.  

“Given that we have plenty of abor­tionists in the state that do it, I’m pretty con­fident that it will be struck,” Marnon said. “At that point, it will be appealed to the Supreme Court.” 

A Michigan Law Before the U.S. Supreme Court? 

In March, the U.S. Supreme Court will hear its first abortion related case with Kavanaugh on the bench. June Medical Ser­vices LLC v. Gee chal­lenges a law that requires abor­tionists to obtain admitting priv­i­leges — the ability of a doctor to admit a patient to a local hos­pital —  before per­forming abor­tions.

Right to Life of Michigan sub­mitted an amicus curiae brief for this case urging the court to repeal Roe with it.

“The Roe v. Wade decision went beyond the scope of their power, vio­lated the process for amending the U.S. Con­sti­tution, and has under­mined the legit­imacy of our nation’s judicial system,” Right to Life of Michigan wrote in a January 2020 press release about the brief. “The Supreme Court has rec­og­nized that the gov­ernment has an interest in pro­tecting the life of unborn children, and the brief asks the Supreme Court to live up to their own stan­dards.”

The brief said that even if the court isn’t ready to overturn Roe, June should stand inde­pen­dently because “abor­tionists often have no rela­tionship with local hos­pitals.”

“This will be the first test case with a majority con­ser­v­ative jus­tices,” Marnon said. “This will be Brett Kavanaugh’s first at-bat.”

If the court doesn’t overturn Roe with June Medical Ser­vices LLC v. Gee, Right to Life of Michigan is pre­pared to bring forward its dis­mem­berment case.

The pro-life group decided to back a dis­mem­berment ban because it believes the ban is the most likely leg­is­lation to be reviewed by the nine jus­tices on the U.S. Supreme Court. 

Chris Gast is the director of com­mu­ni­ca­tions at Right to Life of Michigan and said the case could lead to the reversal of Roe.

“The last time we saw the court really expand the ability of states to impact the issue of abortion was when they allowed the partial-birth abortion to stand,” Gast said. “Since we have a partial-birth ban, why don’t we just add the def­i­n­ition of a dis­mem­berment abortion to it?”

The potential case would ask the court to use the same logic they used in the 2007 Gon­zales v. Carhart case that upheld partial-birth abor­tions to now remove dis­mem­berment.

“They can review Roe anytime, it’s just when they’re coura­geous enough to do the right thing,” Gast said.