Adding Reproductive Rights to the Michigan Constitution
by Dianne Feeley
We are faced with a nasty U.S. Supreme Court ruling in the Dobbs v. Jackson Women’s Health case that will be announced in late May or early June. On May 2 the draft decision in the case was leaked; it called for overturning Roe v. Wade, the 1973 decision that legalized abortion before fetal viability.
Most court watchers (including me) expected the Court would rule that Mississippi’s 15-week ban on abortion was legal but still retain Roe v. Wade. Given that public opinion does not support banning abortion and given that there is a 6–3 anti-abortion majority on the Court, we suspected a contradictory ruling was necessary for the Court to appear more or less a neutral arbitrator.
But the draft decision, authored by Samuel Alito, Jr., turns reproductive rights decisions back to the states. At least 26 states have laws, or will enact them, to severely restrict or ban abortion outright. Assuming the 1973 decision is dead, Texas, Idaho and Oklahoma have enacted abortion bans at six weeks. Arizona, Florida and Kentucky have passed bans at 15 weeks — similar to the Mississippi law before the Supreme Court. (States are also busily passing restrictive election laws, gerrymandered election maps, laws banning books, and laws cutting off access to medical care for transgendered youth).
Here in Michigan we have had a 1931 law that criminalizes those who perform abortions. Back then, a few doctors were prosecuted and sent to jail under that law. In one case, Ed Keemer, an African American physician was arrested, tried and sentenced in the mid-50s. He served 14 months in Jackson prison and lost his medical license. Eventually he got his license back and went on to become the Midwest vice president of the National Association for the Repeal of Abortion Laws (NARAL). Dr. Keemer continued to perform abortions and was re-arrested in the 1970s but given the Roe v. Wade decision, Judge George Crockett, Jr. dismissed the case in 1975. In concluding his memoir, Keemer noted that since 1973 the fight is no longer “to gain reproductive choice, women are now striving to retain that right.”
The 1931 Michigan law remains on the books and would immediately go into effect if Roe v. Wade is overturned. Northland Family Planning Clinic has already announced that if that happens they will be forced to shut down. (The owner, Rene Chilian, has been an abortion worker/provider since 1970.)
Currently there are 27 abortion providers in 13 Michigan counties that perform nearly 30,000 abortions annually. Proportionately more Black women seek abortion than white women. The majority are in their first trimester; about 40% (and rapidly rising) abort through medication. That is, those who find themselves pregnant and do not wish to be seek abortion as soon as possible. Later abortions generally occur because the woman lacks resources, is unable to arrange transportation or childcare, or because of fetal problems.
Michigan already has a variety of abortion laws. They require a 24-hour waiting period between mandated counseling and the procedure, which includes warnings of possible negative psychological effects, require parental consent for teenagers, limit Medicare coverage to cases of rape, incest or life-threatening circumstances, and allow insurers to exclude abortion from coverage. Thirty-five percent of Michigan women live in counties where there are no abortion clinics.
According to a January 2022 poll, two-thirds of of Michiganders support the Roe v. Wade decision. Returning to the “good old days” of forced motherhood and botched abortions doesn’t seem possible — yet we should be clear that the right wing’s goal is to establish “personhood” for fetuses.
Two years ago those opposed to abortion attempted to get signatures for two ballot referenda: a) Right to Life Michigan’s petition outlawed dilation and extraction (D&C), the most common medical procedure used for second trimester abortions, and b) Michigan Heartbeat Coalition’s petition outlawed abortions after a fetal heartbeat is detected (usually about six weeks of pregnancy). Actually they had no intention of putting the issue on the Michigan ballot. Instead, they intended to submit their petition to the legislature, which has the “right” to pass such an initiative into law, even bypassing the governor’s signature. The Michigan Board of State Canvassers ruled neither referendum gathered enough valid signatures.
The ACLU, Planned Parenthood, and Michigan Voices have initiated a petition to amend the Michigan Constitution to include the right to reproductive freedom. This term covers all aspects of pregnancy — prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management and infertility. (It does prohibit abortion after fetal viability except to protect the patient’s life or physical or mental health. Viability is around 24 weeks; this provision, insisted upon by the state committee approving petitions, is similar to that established under Roe v. Wade.)
If the reproductive rights referendum got enough signatures to qualify for the November ballot and was approved, it would invalidate state laws that conflict with reproductive freedom, beginning with the 1931 law. It would also be a barrier to future rightwing legislative action. What is particularly good about this petition is that it goes beyond defending the right to abortion, placing abortion within a range of reproductive needs.
The petition, and knowledge of the leaked draft decision, can encourage people all over the state to take action, including circulating the petition for the democratic right of the people of Michigan — not the politicians — to guarantee that individuals can carry out reproductive decisions about their bodies. Clearly whether Roe v. Wade is overturned, or is significantly modified, this referendum can expand Michigan’s constitutional rights.
I would urge DSAers to join this petition campaign. The petition drive aims to collect 425,000 signatures from registered voters in a required 180 days. That means we need to reach the goal by mid- to late June. We need to petition our friends, relatives and coworkers but reach far beyond them. It means collecting signatures at events, at Eastern Market, on campuses, in front of public buildings (libraries and post offices) and everyplace else.
As I petition, I find some folks eager to sign on while others question me because they want to be sure we are not the anti-abortion folks trying to get their signature under false pretense. Voters sign a petition from the county where they are registered to vote. I start out with a clipboard that has at least three sheets — for Wayne, Oakland and Macomb counties. I give folks literature and also to those in too much of a hurry to stop that day.
Metro Detroit DSA endorsed the May 3 emergency rally at the Federal Courthouse the day after the Alito draft was leaked, and in coordination with emergency demonstrations across the country. Working with the Reproductive Rights Group of Michigan, we will be planning additional rallies and marches.
Operating on a parallel track, in early April Governor Gretchen Whitmer filed a lawsuit in the Michigan Supreme Court, exerting her executive authority to order them to resolve whether the right to abortion is protected under the due process clause of the state constitution. Earlier, Attorney General Dana Nessel stated that she would not use the resources of her office to prosecute anyone under the 1931 law, if Roe v. Wade was overturned. (However, county prosecutors might.)
Is there a chance that the U.S. Supreme Court’s decision in the Dobbs v. Jackson Women’s Health will not overturn Roe v. Wade? Yes, that is a possibility, although slim. What will make a difference is the outrage that can be mobilized across the country. Our job is clearly before us: Both petitioning and demonstrating are absolutely necessary! Assuming we gather enough signatures to have the referendum on the November ballot, we can campaign for a yes vote. Such a positive campaign can add a new constitutional right for Michiganders and inspire defenders of reproductive freedom in other states.
The Detroit Socialist is produced and run by members of Detroit DSA’s Newspaper Collective. Interested in becoming a member of Detroit DSA? Go to dsausa.org/join to become a member. Send a copy of the dues receipt to: membership@metrodetroitdsa.com in order to get plugged in to our activities!
