MICHIGAN—Abortion rights will be on the ballot this November, in the form of a proposed constitutional amendment. You’ll see it when you vote in-person or by mail in the General Election—look for the “Michigan Right to Reproductive Freedom Initiative.” It’s a proposal by the coalition Reproductive Freedom for All, and to be put on the ballot, the group needed 500,000 signatures of support from Michigan voters. It got 730,000—a state record. Opponents of abortion access have started spreading the idea that the amendment is too vague and doesn’t allow the state to regulate abortions, and those groups will likely spend the next 12 weeks amplifying their claims.
So we reached out to someone who helped write the proposed amendment. Robert Sedler is a retired constitutional law professor from Wayne State University, who was fighting for abortion rights before the passage of Roe v. Wade in 1973. Along with Leah Litman, a constitutional law professor at the University of Michigan, Sedler helped separate fact from fiction when it comes to the ballot measure. Bookmark this page—you might be able to stop the spread of misinformation as election season heats up.
Claim: Amendment language is too vague—there’s no way to regulate abortions.
The amendment proposal says: “The state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.”
Not only is a health care professional involved in the decision, the state can regulate abortion access past fetal viability. That’s the point at which the fetus could survive outside the uterus. The medical community generally accepts that fetal viability happens around 24 weeks.
It’s worth noting: Only 1.2% of abortions are performed at or after 21 weeks.
Claim: The amendment would allow abortion up to the moment of birth, due to a mental health exception.
This myth comes from the amendment’s language that the state cannot prohibit an abortion that “in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.” Some anti-abortion folks are claiming this means abortions could be performed up to the due date if the pregnant person tells healthcare providers they are stressed by the thought of having a baby.
“Even after viability, the abortion is permitted in those rare cases where it’s necessary for the life or health of the mother,” Sedler said. But it’s “absolutely ridiculous” to claim a pregnant person would get an abortion past viability simply because they didn’t want to be pregnant, he said. Research backs him up: 91% of abortions occur at or before 13 weeks.
Claim: A 12-year-old could get an abortion without parental notification or consent.
That’s mostly untrue.
Michigan law already requires parental consent for a minor to receive an abortion. There is a ‘mature minor rule’ that can be used to bypass parental consent. It requires a judge’s ruling that the minor is mature enough to elect an abortion on their own. But none of this is impacted by the proposed amendment.
It’s worth noting that restricting minors’ rights is a standard expectation in law. Litman, a constitutional law professor at the University of Michigan, gave the example of the Second Amendment – although it gives everyone the right to possess a firearm, that doesn’t extend unequivocally to minors.
“It is very well established in every brand of public law that even when minors have rights, those rights can be restricted in a way that isn’t true for adults,” she said.
Claim: Abortion providers couldn’t be sued for malpractice.
Sedler said the amendment treats an abortion like any other medical procedure. This means if a patient believes there is evidence of medical negligence, a malpractice suit could be brought against the provider—just like any other medical procedure that goes wrong.
It’s worth noting that the complication rate for abortions in the U.S is only about 2%, with most of those being minor complications like pain, bleeding, infection and post-anesthesia complications.
It’s worth noting that this same principle would apply to the myth that “back-alley” abortions would become legal under the amendment. Just like any other medical procedure, there are standards that providers must reach to legally provide medical care.
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