In a Nutshell

• The adoption of an amendment to the Michigan constitution granting a fundamental right to reproductive freedom generates many questions for legislators and their constituents.
• Some of the uncertainty opens the door for various legal challenges concerning different elements of the amendment. 
• The legislature can directly resolve some ambiguities by repealing or amending existing legislation, and/or enacting new legislation that defines the language of the amendment.

Introduction

Proposal 22-3, the Reproductive Freedom Amendment (RFA), was adopted with almost 60 percent of the vote, enshrining the right to reproductive freedom into the Michigan Constitution.  The adoption of this amendment answers one question that was left open by the dismantling of Roe v. Wade: will the right to abortion be restored in Michigan, or will the existing statute that bans abortion be reanimated?  Michigan voters chose the former, making the existing statute unconstitutional and ensuring a level of protection for access to abortion and other reproductive services.

While the RFA is unlikely to be challenged under the federal constitution, the language within its provisions leaves room for conflicting interpretations that may result in disparate application of laws.  To reduce some of the confusion surrounding the implementation of certain provisions and to avoid the delays arising from lawsuits, policymakers might consider acting to resolve some of the highly debated and unresolved issues.  In so doing, statutory responses would have to comport with the self-executing framework of the amendment and avoid infringing upon the new constitutional rights. The Michigan Legislature is within its constitutional authority to provide the necessary statutory framework to implement this constitutional amendment, just as it has in the past for other complex constitutional provisions.

Parental Consent

One question that has garnered significant attention has to do with whether the RFA affords fundamental rights to minors. Michigan’s parental consent law (Parental Rights Restoration Act) prohibits a person from performing an abortion on a minor without first obtaining their written consent, along with the consent of one of their parents or legal guardians.  This law was valid under the Roe v. Wade framework, but the constitutional amendment’s language could be interpreted more broadly.  The term “individual” could arguably include minors, as the language does not explicitly exclude minors from exercising the fundamental right to reproductive care, including abortions. 

Should policymakers want to afford this right to minors, they could repeal the Parental Rights Restoration Act.  However, there appears to be little public appetite for this.  To preserve parental consent for abortions, the legislature would likely leave the Parental Rights Restoration Act as is so it can be enforced similarly to how it was enforced under Roe. 

The enforcement of the law may give rise to lawsuits.  For example, a minor who was denied an abortion under the authority of the parental consent law could challenge it for infringing on their new fundamental right to abortion.  Alternatively, if a minor receives an abortion without parental consent, the parent could sue the provider for violating the law. 

The current parental consent law also establishes a criminal penalty for providers who intentionally perform abortions in violation of the act, so a provider who was convicted of violating this act could also appeal their conviction on constitutional grounds.  In any of these circumstances, the validity of the parental consent law would have to be hashed out in the courts, which would likely require the Michigan Supreme Court to weigh in on whether the term “individual,” as used in the amendment, includes minors.

Scope of Services

The RFA provides a fundamental right to effectuate and make decisions regarding all matters related to pregnancy.  While it includes a non-exhaustive list of procedures, there is no established limitation on these services.  Some have questioned how broadly the term “related to pregnancy” might be interpreted.  The legislature could attempt to establish limitations by creating statutory prohibitions or restrictions on certain types of procedures or care that are not directly listed in the RFA, essentially requiring anyone seeking to obtain those services to challenge the constitutional validity of the statutory restrictions in court.

Some argue that the language could be construed to include anything related to reproduction or sex, which could include procedures related to gender reassignment.  Combined with the ambiguity regarding parental consent, some worry that minors will be able to obtain unfettered access to these procedures.  Neither a plain language reading of the amendment nor the proponents’ arguments would support including gender reassignment under the RFA umbrella, so it is unlikely that the legislature will take active measures to establish this. 

Should policymakers leave this language untouched, or if they attempt to restrict any services or care that exist in this gray area, the availability of particular services may be determined by the courts on a case-by-case basis.  For example, if a minor seeking a gender reassignment surgery without parental consent is denied the procedure under new or existing statutes, they could sue their provider or the state to get the courts to require the procedure under the auspices of the new constitutional right.  In this case, the courts would have to consider whether a gender reassignment surgery or procedure qualifies as a matter “related to pregnancy”.  

Physical and Mental Health Conditions

Under the amendment, the legislature can restrict abortions after the point of viability (defined as the point in pregnancy in which the fetus is likely to survive outside of the uterus without extraordinary medical intervention), but individuals may still obtain a post-viability abortion if it is necessary to “protect the life or physical or mental health of the pregnant individual.”  These provisions, however, appear to conflict with Michigan’s existing statutes that penalize individuals for the willful killing or death of a “quick child”, as they prohibit abortions in call cases except when “necessary to preserve the life of the mother” – a much narrower carve-out than the constitution now allows for.

Similarly, Michigan’s law that prohibits “partial birth abortions” may be repealed, amended, or challenged as well.  Currently, the law bans a type of abortion procedure, referred to in law as “partial-birth abortion,” unless necessary to save the life of the woman.  This may conflict directly with the language of the amendment, as the amendment does not provide separate restrictions for types of abortion procedures.  Under the amendment, if an abortion is necessary to preserve the physical or mental health of the mother as determined by the health professional, that abortion must be available, regardless of the particular method or stage of pregnancy. 

The “physical or mental health of the individual” is a different standard than the “life of the mother,” but the manifestation of this difference is unresolved.  The ambiguity could be resolved directly by the legislature if they repeal or amend the law that restricts abortions after the point of viability, as the existing law does not include the necessary exceptions.  The legislature could also specify the situations in which a post-viability abortion may be performed by defining the “health of the individual standard” in the new or amended language.  Any new legislation, however, could be challenged as conflicting with the intent of the constitutional amendment. 

Alternatively, if state policymakers do not attempt to establish these statutory definitions more clearly, the issue could be resolved when a physician is sued or prosecuted for performing a post-viability abortion and must justify the severity of the individual’s health condition that necessitated an abortion.  This would lead to the development of legal precedents that speak to the new constitutional standard.  It is possible that courts may be confronted with these situations on multiple occasions, creating parameters for the physical and mental health exception over time rather than all at once. 

State Funding

Michigan currently limits public funding for abortion in a few different ways.  Most notably, state law prohibits the appropriation of public funds for the purpose of providing an abortion to a person who receives welfare benefits, unless necessary to save the life of the mother.  State law also allows priority to be given to family planning entities that do not provide abortion when allocating public funds through grants or contracts.  In addition, insurance coverage for elective abortions can only be offered through an optional rider, and does not require a health maintenance organization, health care corporation, or employer to purchase the rider. 

It could be argued that these statutes conflict with the language of the RFA, particularly the non-discrimination clause, which prohibits the state from discriminating in the protection or enforcement of the fundamental right to reproductive care.  An individual who relies on state funding for health care may sue the state for failing to fund an abortion on the grounds that lack of state funding is discriminatory and therefore violates the Michigan Constitution.  While the Michigan Supreme Court previously held that prohibiting the appropriation of public funds for abortion did not constitute discriminatory treatment, the judicial analysis was based on the state’s equal protection clause (Doe v. Department of Social Services, 439 Mich 650 (1992)).  The RFA affords an explicit fundamental right to abortion with its own non-discrimination clause, and it is unclear how courts will interpret the state funding provision under the new framework. 

One advantage of policymakers acting sooner rather than later is to head off a litany of court challenges.  Many of the state laws regarding abortion were enacted with the intent to restrict or limit access to abortion.  The passage of the RFA demonstrates the public’s general support for some abortion access, and a Democratic legislature may consider addressing these statutes before they can be challenged.

Health and Safety Laws

Michigan has several laws that set various requirements for the process of obtaining legal abortions.  For example, these laws address informed consent, screening for coercion, and state licensure for facilities performing abortions.  Some of these laws may serve the purpose of promoting the health and safety of those receiving care, while others may be thought to unnecessarily hinder the process.  The legislature may consider reviewing and potentially amending or repealing laws that conflict with the language of the constitutional amendment. 

While the health and safety laws in effect were valid under Roe, they may not meet the “compelling state interest” standard set by the amendment.  Under the new framework, the state may regulate the abortion process when there is a compelling state interest to do so.  The amendment defines “compelling” as a state interest that

1) is limited for the purpose of protecting the health of the person seeking care,

2) is consistent with accepted clinical standards of practice and evidence-based medicine, and

3) does not infringe on that individual’s autonomous decision-making. 

This is notably different than the compelling state interest standard under Roe, which was not clearly defined and depended on the court’s subjective interpretation of the state’s interest.  Therefore, it is possible that some health and safety laws that were valid under Roe may not be justified by a compelling interest as defined by the amendment. If the legislature does not act to adjust these laws, providers subject to these requirements may challenge them in court.

Conclusion

Like many provisions of the Michigan Constitution, the RFA includes broad and inclusive language that sets up a general framework and creates certain parameters for what this fundamental right will look like.  The breadth and ambiguity of the language leads to questions regarding the application of this right and its interaction with existing legislation.  Broad constitutional provisions are usually later refined by the legislature and/or court decisions that help to define ambiguous terms, and the RFA will likely follow in this path.  Through the law-making process, the legislature can afford greater protections than the amendment, but at the very least, it must ensure that current law does not infringe on the fundamental right to abortion.  Without clarification from the legislature, many of these issues may be vulnerable to legal challenges and it will be up to the courts to step in and provide further guidance on the application and impact of this new constitutional right.