Attorney Daniel S. Hilker and Dr. Joanne Castillo MD, a family medicine physician, assess some the claims being made by the pro-abortion lobby in the current debate over Proposal 3, which will be voted upon Nov. 8.
The proposed “Right to Reproductive Freedom” amendment to Michigan’s Constitution is a wolf in sheep’s clothing. The proposal was circulated and sponsored by Planned Parenthood, and it threatens to change Michigan’s Constitution to make abortion legal until birth and allow for abortions and sterilizations for minors without parental consent. The proposal would render ineffective dozens of laws and provisions of our Constitution that are already in place to protect women, protect unborn children, and prevent taxpayer-funded abortions.
The ballot proposal rides on the violent swell of progressive reaction to the Supreme Court’s Dobb’s decision, which overturned Roe v. Wade, Planned Parenthood v. Casey, and decades of federal court restrictions on state law regulating abortion.
You may have heard some of the claimed benefits of the amendment: “Protect miscarriage care!” “Protect women!” “Don’t take away the right to choose!” “My body, my choice!” “Save Roe!”
If you read nothing else in this article, know that the amendment does not restore the Roe status quo, rather it unwinds nearly all of Michigan’s Roe and Casey compliant abortion regulations and leaves Michigan legislators virtually powerless to regulate abortion, sterilization, and gender transition therapy. Under Roe and Casey, Michigan’s laws required parental consent for minors, required safe care, and limited elective abortion to “pre-viability.” The amendment changes all this and more.
This Amendment was written by the largest abortion provider in the United States. It was not written by you, your friends, or your lawyer. You must read the amendment’s full text in advance. The text of the amendment will not be written on the ballot in November. Only a “summary” will be shown on the ballot, but the summary does not inform voters of the grave legal and medical issues raised in this article.
Our Constitution is the bedrock of law. All state laws in Michigan must comply with the text of our Constitution. By the amendment drafter’s own admission, this ballot initiative changes seven separate articles of the Constitution and “alters or abrogates” more than 2,200 words of Michigan’s Constitution. Please, before you vote, be 100% certain of what you are signing into law.
Elective abortion always harms women. Elective abortion is always an act of violence against the most vulnerable. It always ends the life of a child, a human being whom is unrepeatable, created in the image and likeness of God, body and soul from the moment of conception, with a unique genomic sequence, personality, and God-given mission. Elective abortion is not health care; it is the violent death of the unborn child. However, this “hardline” Catholic perspective is not the subject of this article.
Someone you know is pro-Roe, so let us turn instead to the claims made by the amendment proponents that you can discuss with a pro-Roe individual:
1. This amendment must be passed to restore women’s rights under Roe. False.
This amendment is so far beyond Roe that it cannot fully be explained in one sitting. Take this direct quote for example:
[T]he 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.
Unless the amendment is defeated, abortion will be legal in Michigan up to birth under the “physical or mental health” exception. The plain text of the amendment here is not a loophole. It is an intentional and radical expansion of abortion in Michigan. As any woman knows, a normal, healthy delivery is a risk to the mother’s “physical health.” Obstetric emergencies, like severe bleeding and amniotic fluid embolism, can even cause death during delivery. If a determination is made that an abortion will protect a mother from this danger to her physical health, then the abortion is permissible. Also, since “health care professional” includes a wide variety of professions, the “mental health” or “physical health” determination could be made by a nurse or a social worker, among others. Nothing in the text indicates that the same “health care professional” who makes the determination must be the one who performs the abortion. Therefore, a referral network of psychologists or social workers to abortion physicians could further insulate providers from laws against post-viability abortion. The plain text here says that abortion will be legal until birth in Michigan. This is not a return to Roe.
2. The amendment is required to preserve the rights of the next generation. False.
Parents are essential to the formation of their minor children. It is necessary that children be counseled by their parents regarding life-altering medical decisions. This counseling is a right for both parents and children. However, the amendment clearly provides that a minor girl can seek and obtain an abortion without parental knowledge or consent. The amendment further provides that a minor boy or girl can seek and obtain permanent sterilization or hormone therapy without parental knowledge or consent. The text provides:
Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care… The state shall not discriminate in the protection or enforcement of this fundamental right.
This means no discrimination on the basis of age. This “care” could include secret counseling in favor of abortion. “Care” could include secret treatment of gender confused children that results in hormonal sterilization. Such treatment is likely to have permanent harmful effects, especially in prepubertal minors.
The amendment would allow minors to obtain hormonal sterilization and gender transition therapy without parental knowledge or consent. Children need their parents. Children need their parents especially on gender and sexuality issues. Our culture of experimentation, promiscuity, and media bias has an obvious bent toward gender reversal. Our children should not be left without their parents in this storm of gender confusion. The amendment is a direct attack on the rights of Michigan parents and children.
3. The amendment protects a woman’s right to choose. False.
Medical professionals have the duty to provide detailed information of risks versus benefits to patients in order for them to make an informed decision regarding medical and/or surgical treatments. Providing this information allows for “informed consent.” However the amendment text intentionally reduces the consent threshold from “informed” to “voluntary.” The text provides:
The state shall not penalize, prosecute, or otherwise take adverse action against an individual … for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.
“Voluntary consent” merely means that there is no coercion or deceit on the part of the practitioner. A woman cannot freely choose an abortion until she is informed. She should be informed of the fundamental risks associated with abortion and that certain risks are higher during an abortion procedure than during childbirth. Abortion has serious inherent risks, and women deserve to be fully informed. We now know that induced abortions have been associated with an increased risk of infection, hemorrhage, preterm birth, future miscarriages, infertility, cardiovascular disease, and even death. Abortion also has been shown to increase the risk of breast cancer, anxiety, depression, and suicide.
The amendment would not allow patients to sue in malpractice against a physician who failed to inform them of the significant health risks posed by an abortion or sterilization procedure. The physician has a clear defense under the text of the Amendment. The amendment protects abortion providers, like Planned Parenthood, not a woman’s right to make informed choices.
4. The amendment is required to protect “miscarriage care.” False.
A patient would never be punished for having an involuntary miscarriage or a stillbirth, even under Michigan’s 1931 law that is currently in litigation. Miscarriage and stillbirth are medical situations in which the unborn child dies spontaneously. Miscarriage refers to a death before 20 weeks and stillbirth occurs at 20 weeks or more of gestation. The term stillbirth also refers to fetal death during birth. Women will always be able to receive medical care for a miscarriage or stillbirth under current law, as the mother did not intend to end the life of the child in the womb. The amendment does nothing to protect “miscarriage care;” it merely hides abortion care under this false mantle.
5. The amendment is needed to allow medical treatment for an ectopic pregnancy. False.
An ectopic pregnancy is a medical emergency, and women are always able to receive medical care in this situation. An ectopic pregnancy is defined as an extrauterine pregnancy, in which the baby is found outside of the uterus. The treatment approach can be different depending on whether the fetus has already died or not, the size of the baby, if the mother is stable or not, and her ability to seek medical care in case of an emergency. Most ectopic pregnancies occur in the fallopian tube, but other possible sites include cervical, hysterectomy scar from a previous cesarean section, ovarian or abdominal, among other places. Having an ectopic pregnancy places the mother at risk of dying from hemorrhage if the area would rupture. Women are receiving and will always receive care for ectopic pregnancy, which is a life saving treatment for the mother. The amendment does not create any new protection for treatment of ectopic pregnancy; it is an abortion amendment.
6. The amendment is needed to protect health care professionals from going to prison for performing fertility, miscarriage, and pregnancy services. False.
No law, not even the 1931 statute that is currently in dispute in the courts, prevents doctors from providing these services. The 1931 law makes elective abortions illegal, and a doctor who performs an elective abortion would be guilty of a crime and could be threatened with prison. Current Michigan law allows for fertility, pregnancy, and spontaneous miscarriage services.
7. The amendment is needed to prevent prosecution of doctors for performing abortions where the mother’s life is at risk. False.
This protection is already enshrined in Michigan’s laws. The protection appears in multiple statutes, even the 1931 law. The amendment text goes far beyond Roe era statutes. It provides that no “health care professional” can have an “adverse action” taken against them for “aiding or assisting” in the exercise of “reproductive freedom.” This is a radical increase in protection from regulation, since the amendment simultaneously provides for an unimaginably broad expansion of the individual’s rights:
An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.
Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability….
A state interest is “compelling” only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.
No state interest can meet this test. No law or regulation of any kind can meet this test. This anomalous provision only applies to pre-viability, but how will Michigan legislate against or prosecute the next Kermit Gosnell when the law must “not infringe on the autonomous decision-making” of patients and the patients autonomously choose sub-standard care for financial reasons?
8. This amendment is needed to prevent doctors from going to prison for providing abortion care. Mostly false.
Under current law, licensed physicians can perform abortions in certain circumstances. Those circumstances detailed above do not need additional protection. The amendment broadens when and how abortions can be provided well beyond the parameters of Michigan’s Roe and Casey compliant laws.
Although the November ballot will use the phrase “fetal viability,” it doesn’t mean what you think it means. It doesn’t mean what it meant under Casey and Roe. The text provides:
“Fetal viability” means: the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.
Extraordinary medical measures including nutrition, hydration, incubation, intubation, and resuscitation are often required for pre-term infants. It is widely understood that “viable” means able to live with the assistance of such extraordinary medical measures. However, the Amendment text says that a provider could terminate an otherwise viable fetus if “extraordinary medical measures” are required. It appears that this is a carte-blanche invitation to terminate, unless the child can survive on its own. The text of the amendment goes on to say that these determinations are unreviewable by the state:
Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.
Finally, the amendment also does not restrict the “viability” determination to physicians. The amendment uses the term “health care professionals.” In Michigan, “health care professionals” include acupuncturists, athletic trainers, audiologists, chiropractors, dentists, dietitians, family therapists, massage therapists, nurses, social workers, psychologists, veterinarians, among others. The amendment is unclear whether such persons could actually perform abortions; however, it is abundantly clear that these “professionals” can decide whether a four or even a nine-month-old fetus is “viable.”
Under the amendment, if, in the unreviewable “professional judgment,” of a “health care professional” the fetus is not viable, then an abortion could be obtained, even up to birth. This avenue is in addition to the perhaps easier route of simply claiming that the woman’s “mental health” is at risk, and therefore the child must be terminated.
9. The amendment protects women. False.
This amendment would invalidate state laws that require abortion clinics to meet the same basic safety standards as other health care facilities, such as hospitals and outpatient surgery centers. Under the amendment, no law can be enacted regarding safety standards if that law “infringe[s] on that individual’s autonomous decision-making,” during pre-viability. As written, this means that no state law can prevent a woman from seeking a cheap or back-alley abortion from an unlicensed physician. This may sound radical. It is.
10. The amendment protects the fundamental right of every individual (man and woman) over their own body, as summarized in “My body, my choice!” False.
The amendment only recognizes the right of “bodily autonomy” of the pregnant woman, not the bodily autonomy of the male or female individual in the womb.
No right is absolute. Every right under the Constitution and other laws must be seen in relation to the rights of other individuals. For example, the right to freedom from police searches is not absolute. There are circumstances when our cars, homes, and even our body cavities may be searched to protect the rights of other persons. Even our right to our own life must give way when our country is at war and needs to draft troops. Simpler rights like the right to put up a fence on one’s own property must give way to the rights of your neighbors to not have the free flow of air and light obstructed on their property.
Even though a person has a right to make their own medical decisions (refuse medications, surgeries, infusions, and life-saving medical treatment), there are few circumstances where these decisions could infringe on the rights of a second person. Pregnancy is such a case.
Imagine a woman is at home watching television, and a male friend stops over with his infant daughter, ostensibly to say hello and chat for a while. The man excuses himself to the bathroom, but then disappears, leaving the home. The woman tries in vain to contact him, but is left alone, holding a baby that she did not ask for. Ordinarily, the woman has rights in her own home: to deny anyone entry, to ask anyone to leave, even to kill an intruder who threatens her. But what are her rights here with respect to this child? Specifically, can she kill the baby and dispose of the body? In this case, the rights of the woman must give way to the rights of the baby girl.
Obviously, this metaphor breaks down (as all do) because there is no risk to the physical integrity of the home when the police come to pick up the child, and there will be only a few minutes before the situation is resolved. Nevertheless, the metaphor is informative. As a society, we must find a way to balance the rights of a woman with the rights of her unborn child, just as we have learned to balance the rights of Americans with conflicting rights in all other contexts.
Some people have become confused about this right balancing exercise because they believe the child is part of the pregnant woman, the child is like a parasite, and/or that the child does not have its own rights.
The pregnant woman and the child are not the same being/entity/person. The fetus or preborn baby is not part of a woman’s body. A woman’s body does not have two heads, four arms and four legs. The pregnant woman’s body is a separate entity from her unborn child, both human beings, from the same species, the Homo sapiens sapiens, but with a distinct genomic sequence that distinguishes two completely different organisms, two different bodies, living in a mutualistic symbiotic way. The preborn baby has his or her own heart, brain, and organs. If the pregnant mother dies, her child can still live if quickly removed from her body and could live without depending on the mother if the baby has reached a certain gestational age, currently around 21 weeks.
Human beings can be dependent at any developmental stage. Preborn babies, newborns, infants, toddlers, adolescents, many aging adults, and persons with cognitive or physical disabilities all depend on someone else for nutrition and care. Dependency does not make us less human. The baby is dependent on the mother for oxygen, water and nutrients, and all the needs in utero, just like an astronaut is totally dependent on the spacecraft for air, water, and food, and cannot survive in space, but that does not make the astronaut part of the spaceship.
Although dependent, the baby is not a parasite; pregnancy benefits the mother. Pregnancy is beautiful, amazing, and miraculous, as well as uncomfortable, unwieldy, and difficult, but the woman is not just a “host.” Studies have shown a multitude of positive benefits of pregnancy, for example: lower risk of breast, ovarian and endometrial cancer, reduced or eliminated menstrual cramps after pregnancy, reduced risk of developing a demyelinating event like those seen in multiple sclerosis. After birth, the oxytocin hormone helps with bonding, feelings of connection with the baby and with breastfeeding. And eventually breastfeeding the baby for at least six months can also decrease the risk of stroke, heart disease, diabetes, and high blood pressure. The pregnant woman has the capacity to nurture new life within her, and almost effortlessly feed her child to help her or him grow until birth.
Any person, regardless of whether they are dependent on another, is worthy of protection from pain, abuse, and death. When a woman conceives, the new, completely dependent, human being in her womb has the right to life.
Yes, we need to respect, cherish, honor, and protect the right of every woman to her own body. However, as with all other rights in our nation, we must balance the rights of the woman when they directly conflict with the rights of her unborn child.
What should that balance look like? You, as Michigan’s Constitutional drafter must decide. We propose to you that the amendment, which makes no provision for the rights of the child, is not the correct course.
We warned you at the beginning that the breadth of this amendment cannot be addressed in one sitting. Despite the length of this article, that is still true. The amendment also radically affects the following:
- Ban on tax-funded abortions;
- Partial-Birth Abortion Ban;
- Health and safety regulations for abortion facilities;
- The sale of human embryos;
- Surrogacy contracts;
- Human cloning;
- Conscience rights of doctors;
- Religious exemptions for Catholic hospitals and medical centers;
- Born Alive Infant Protection Act;
- Waiting periods for women seeking abortions;
- The sale of fetal parts;
- Experimentation on living human fetuses, leading to death in utero, etc.
The scope of this amendment is enormous, and many of the just-mentioned subjects are included in the “altered or abrogated” section of the Petition text, because when Planned Parenthood drafted the amendment, they knew these issues would be affected. But you will never see an ad from Planned Parenthood stating that the amendment allows experimentation on living human fetuses or that abortion up to birth will be permissible. You will just hear that it will “restore Roe.” Planned Parenthood’s marketing team believes the truth might not sit well with Michigan voters.
The 10 false claims and the list above should be horrifying, but not surprising. What would beef processing regulations look like if they were written by McDonalds? They would look a lot like abortion and gender transition regulations when they are written by Planned Parenthood. The amendment would allow abortion throughout pregnancy until birth, which is a tremendous mistake, but it could be tremendously profitable for Planned Parenthood’s providers. It would also strip women of many safety regulations and informed consent laws that currently protect them, making abortion providers less subject to regulation and malpractice lawsuits. This amendment does not serve Michigan’s women and children, it serves Planned Parenthood and its providers.
Pregnant women need health care professionals who provide ethical, life-affirming, high quality, and evidence-based medical care. We need to provide support and legal protection to the expectant mother and her baby or babies. Michigan’s women and children do not need this amendment.
The amendment also steals from parents the right to be informed about and say no to gender transition therapy, hormonal sterilization, and abortion for their minor children. Michigan’s parents and children do not need this amendment.
Do not just trust us on this. Read on your own, talk to others, and make an informed decision before Nov. 8, 2022. We recommend the full text of the “Right to Reproductive Freedom” Amendment itself, which you will not see written on your ballot!, as compared to the ballot language, attorney John Burch’s article in the Detroit Free Press, “Proposed Reproductive Freedom Initiative Goes too Far”, the Lozier Institute’s “Overview of Michigan Ballot Initiative,” and Right to Life of Michigan’s analysis.
You are a Michigander, and on Nov. 8, 2022, you are a legislator. What should your Constitution say?
This article first appeared in a special edition of Faith magazine, "Fight Like Heaven: Vote No on Extreme Proposal 3," and is republished with permission from the Diocese of Lansing.
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