It is now confirmed: on November 8, Michigan will vote on the inclusion of the right to abortion in its Constitution. This referendum, a consequence of the petition launched by the pro-choice alliance Reproductive Freedom for Allalmost never saw the light of day.
Nearly three months following the U.S. Supreme Court struck down Roe v. Wade (with Dobbs v. Jackson Women’s Health Organization), which guaranteed the right to abortion in the country, a number of states have passed laws prohibiting abortion or severely restricting its access. It is now completely illegal in nearly a dozen states. In Michigan, pro and anti-abortion are waging a particularly fierce media and legal battle.
In Michigan, a legal but fragile right
The voluntary termination of pregnancy is, for the moment, still legal in this Midwestern state. However, it is also, at present, particularly fragile and threatened: abortion is not protected by law, it is even prohibited by a text dating from 1931 (Michigan Compiled Laws, Section 750.14). This law was itself deemed unconstitutional in 1973 by the Supreme Court of Michigan in its decision People v. Bricker, a few months following the famous Roe v. wade. Abortion is then authorized until the viability of the fetus.
Since the historic revocation of Roe v. Wade in June, abortion remained legal in this state governed by Democrat Gretchen Whitmer, thanks to the intervention of justice: on September 7, Judge Elizabeth Gleicher rendered a judgement in favor of Planned Parenthood (the equivalent of Family Planning in France), considering that the law of 1931 is unconstitutional. The Attorney General has not appealed this decision, but other legal actions are currently taking their course… A multiplicity of appeals which brings the judge of the Supreme Court of Michigan Richard Bernstein to think that it is his institution that will sooner or later have the last word On the question.
It is in this tense legal context that the pro-choice collective Reproductive Freedom for All has launched a petition intended to lead to a referendum allowing the right to abortion to be included in the Michigan Constitution: Proposition 3.
A typographical debate
This strategy, implemented jointly by theACLU Michigan, Michigan Voices et Planned Parenthood, however, faced a major stumbling block. Despite the impressive number of signatures collected, the documents specific to the Reproductive Freedom petition suffered from a particularly troublesome typographical problem when printed: many words were stuck together, without spaces.
The text of the petition, which opponents blame for spacing problems, creating, they believe, words that do not exist. | Screenshot via Michigan Supreme Court
A detail that was not without consequences: to be taken into account, petitions must meet, among other things, the provisions of thearticle 168.482 of the MCL. If the latter does not explicitly mention the space between the words, should we therefore validate a petition whose typography is particularly abused? This question has brought the Board of State Canvassers, a committee responsible for certifying petitions, to a dead end: the two Democrats and two Republicans that compose it have not reached a consensus. Therefore, and in accordance with thearticle 168.479Reproductive Freedom for All took the case to the state Supreme Court, which slice in his favour:
«[L’article] MCL 168.482(3) only requires that “[l]The full text of the amendment so proposed follows the summary and is printed in 8 point type. The “full text” of the amendment is present: regardless of the existence or prominence of spacing, all the words are present, in the same order, and it is undisputed that they are printed in 8 point type. In this case, the meaning of the words was not altered by the allegedly insufficient spacing between them.said the Supreme Court of Michigan.
For Christen Pollo, president of the pro-life organization Citizen To Support Michigan Women And Childrenwho in this case joined the defense, this conclusion is an error: “The Supreme Court made the wrong decision […]. The petition was fatally flawed. The proper number of errors for our state constitution is zero, not sixty.”
A disappointment that echoes the dissenting opinion expressed by one of the judges of the Court, Brian K. Zahra: “Words separated by spaces cease to be words or become new words when the spaces between them are removed”, he believes. Conversely, for Reproductive Freedom for All, this court decision offers a chance to “return to Roe” and to set in stone a right that has been protected for almost fifty years.
Exacerbated opposition between pro and anti
Caroline Taylor Smith, activist opposed to Proposition 3 and public relations director of the Progressive Anti-Abortion Uprisingdenounces the «nature confuse» of the amendment, whose provisions are capable of authorizing abortion throughout pregnancy and granting immunity to any person “helping or assisting a pregnant person in the exercise of their right to freedom of procreation with their voluntary consent” under the terms of said amendment.
For the pro-life camp, this would allow people outside the medical profession to perform clandestine abortions without running the slightest risk. “Once they hear the realities of the proposal, voters are shocked by its extreme nature. In fact, following explaining the implications of this sweeping amendment, the vast majority of voters decide to vote no to Proposition 3. Even many who call themselves pro-choice and think abortion should be allowed under certain circumstances do not agree with this amendment”she assures.
Asked regarding these interpretations of the amendment and their feelings regarding the ballot outcome, neither the Reproductive Freedom for All press office nor the ACLU Michigan legal department has yet responded to our requests.
A major challenge for the mid-term elections
If neither side seems to be overconfident, the pro-choicers intend to benefit from a “post-Dobbs momentum” to safeguard the right to abortion in their state: the immense emotion that followed reversal of Roe v. Wade caused a unprecedented increase voter registration, especially among young people and women. A phenomenon likely to benefit the Democratic Party and its pro-choice candidates during the midterm elections, the midtermswhich will also take place on 8 November.
In addition, Democrats can benefit from the fickleness of pro-life Republicans, like Senator Lindsey Graham: by presenting a federal bill which would ban abortion in the entire United States following fifteen weeks of pregnancy, he contradicts his previous statements that each state should be free to legislate on this issue… A shameless reversal, in addition to being constitutionally questionable.
“Roe is on the ballot”, President Biden said in June, urging pro-choicers to vote Democratic in November. Was the call received loud and clear? That’s what the midterms will determine.
