—
The long-overdue reversal of Roe v. Wade comes at a time when abortion has become a far hotter controversy than ever before, and the decision itself has caused the slowly building tension to explode. The relieving of the question of whether states can prohibit abortion from constitutional protections as a privacy issue has had the inevitable result of turning many states into political battlegrounds centered around the issue. This will be the first election season since the reversal of Roe, and as expected, abortion is very much on the ballot this year. There are a record 6 ballot measures related to abortion on slate this year, the most of any year. They are evenly split on both sides, with Michigan, California, and Vermont considering proposals to protect and expand access to abortion, and Kansas, Kentucky, and Montana seeking to protect the lives of the preborn. The measure in Kansas, which aimed to constitutionally declare that the Kansas legislature is empowered to regulate abortions in the state, was rejected by voters this August. The remaining 5 will be decided by voters next week.
Of note is Proposal 3 in Michigan, the euphemistically titled Reproductive Freedom for All measure. The measure proposes a sweeping amendment to the Michigan state constitution, enshrining a vague principle of “reproductive freedom” subject to limitation on the basis of “viability.” “Viability” is also not afforded an objective criteria; it is determined by the “professional judgment of an attending healthcare professional” — with no stated requirement that said professional even be a physician — who also has the ability to indicate abortive procedures to protect “physical or mental health.” It also intends to redefine the legal concept of “compelling state interest,” of great importance to constitutional jurisprudence. With respect to reproductive care, that interest is limited by prop 3 exclusively “the limited purpose of protecting the health of an individual seeking care.” The amendment is a radical measure that attempts to take the principles of Roe even further than Roe did. Where as the majority in Roe recognized a public interest in protecting the life of an unborn child, limited as it was at the time by the right to individual privacy, Prop 3 attempts to afford abortion itself the highest level of legal protection.
A related ballot measure, Proposition 1 in California, is a similarly sweeping measure even more simply stated. The proposal will, if adopted, amend the California state constitution to the effect of prohibiting the state from interfering with individual reproductive freedom. Much like Prop 3, this is slated to expand existing protections at state law, along with everything that making abortion a constitutionally protected right implies. Proponents of the proposition insist that this is simply meant to reaffirm an existing right at state law, though this position is hard to sustain in light of the fact that the proposed amendment lacks any of the limiting language of existing law — nor even vague gestures at limitation that Prop 3 pretends to.
Voting “No” on these proposals will not actually affect abortion access in these states, which are already among the most permissive of states that have any abortion laws whatsoever. This is particularly true in Michigan, which is currently judicially enjoined from enforcing even its existing abortion laws. Voting “Yes,” on the other hand, pushes permissiveness towards abortion to new levels, dehumanizing the preborn as a matter of principle and establishing as a matter of law that there can be no interest in protecting life in the womb, no matter how close to birth. Far from being common sense compromises or even simply “restoring Roe,” as proponents assert, these measures will much more concretely have the effect of turning these states from simply jurisdictions where abortion is permissible within certain limits to abortion sanctuaries. These are, unmistakably, extreme measures beyond even what Roe contemplated.
What happens in these elections is likely to influence the trajectory of the legal status of abortion for years to come. Voters in these states have an important decision to make regarding the value of human life for now and the future.