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According to a statement released by the Michigan House Democrats, the RHA was proposed to “repeal outdated and unconstitutional prohibitions on reproductive health care,” referring to a 1931 law that makes abortion illegal in Michigan.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