Michigan's Pro-Abortion Ballot Proposal Stalls

With the Dobbs decision, the United States Supreme Court returned the authority to the States to determine how they want to resolve the issue of abortion. States across the country are now engaged in that battle, whether in courtrooms or legislatures.

As you may recall, the American Center for Law & Justice (ACLJ) filed a pair of amicus curiae (friend-of-the-court) briefs with the Michigan Supreme Court concerning the State’s abortion statute. You can learn more about that case and those briefs here and here.

In that case, we support Michigan County Prosecutors who are defending against a lawsuit brought by Michigan Governor Gretchen Whitmer that seeks to invalidate the State’s abortion statute, which prevents abortion unless necessary to preserve the life of the mother, and to create a right to abortion in the Michigan Constitution. The Michigan Supreme Court has yet to rule on the matter.

While that lawsuit was pending, a ballot proposal to amend the Michigan Constitution and create an abortion right was being circulated. In July, the proposal was presented to State officials for the verification of signatures and for the proposal to be validated so it could be added to the November ballot.

This pro-abortion proposal has been challenged from the start by a coalition of pro-life groups called Citizens to Support MI Women and Children. In August, the coalition notified State officials that there were 43 serious errors in the proposal’s language and, as a result, the proposal should be rejected and not be included on the November ballot.

On August 31st, the Michigan Board of Canvassers considered the proposal and the vote was deadlocked. As such, the ballot proposal was not approved. The pro-abortion groups that back the proposal will likely appeal the decision directly to the Michigan Supreme Court and seek expedited review since the Michigan Secretary of State must certify the contents of the November ballot by September 9th.

If the proposal does not appear on the ballot, the question of abortion would then likely be decided by the Michigan Supreme Court in the Governor’s pending lawsuit. As we argued in our amicus briefs, the Court should not create a right to abortion in the Michigan Constitution. There is no constitutional right to abortion, as the Michigan Court of Appeals previously ruled. Rather, the Court should allow Michigan’s abortion law to go into effect and allow the democratic process to decide whether any changes are needed. But the process must be followed, and a ballot measure that is fraught with issues should not appear on the November ballot haphazardly.

Michigan, as with any State, should have the option to keep or change its abortion laws. These changes (if any) should properly occur through the democratic process, that is, by legislative changes or amendments to the Michigan Constitution. Any changes should not occur through a lawsuit designed to create a new constitutional right and bypass that democratic process.

We will continue to update you about post-Dobbs matters across the country now that the United States Supreme Court has returned the abortion issue to the States for resolution.

UPDATE 9.13.2022:  By a 5-to-2 vote, the Michigan Supreme Court ordered the Board of State Canvassers to certify the pro-abortion ballot proposal as sufficient for placement on the November 8 general election ballot.