Michigan Republicans Show How to Lose on Abortion

Meantime, a group called Reproductive Freedom for All gathered signatures for an initiative to amend the state constitution. “It could be a blueprint for many other states,” Sen.

Elizabeth Warren

cheered in June.

Proposal 3 is styled as a restoration of Roe, but the language goes further. The amendment’s opening clause provides that “every individual has a fundamental right to reproductive freedom,” including “abortion care.” The term “individual”—not “woman” or “adult”—could preclude laws requiring parental consent for minors seeking abortions, says former Michigan Solicitor General

John Bursch.

Proponents deny that. “When Roe v. Wade was the law of the land, courts upheld restrictions on minors’ ability to obtain abortions,” writes University of Michigan law professor

Leah Litman

in an op-ed. “That’s the law that Proposal 3 restores—the protections of Roe. It’s that simple.”

Yet Ms. Litman’s reading contradicts the proposal’s text. It says the right to abortion can’t be infringed absent a “compelling state interest achieved by the least restrictive means.” That’s the same standard that applied under Roe between 1973 and 1992, when Planned Parenthood v. Casey changed it to an “undue burden” test.

But Proposal 3 rewrites the standard: An 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.”

“Those are connected at the hip,” Mr. Bursch says, “so the state would have to survive all three of those hoops in order to pass muster.” It’s difficult to see how Michigan’s parental-consent requirement would remain intact if challenged. Likewise for other moderate restrictions, such as a 24-hour waiting period or a requirement that doctors performing abortions have hospital admitting privileges.

Proponents also take advantage of public confusion over how permissive Roe and Casey were. A June Gallup poll found that 55% of Americans thought abortion should be generally illegal in the second trimester—yet 58% opposed overturning Roe v. Wade, which required it to be available on demand. Although Proposal 3 would allow the state to regulate abortion after fetal viability, it also says it shall be available when “an attending health care professional” determines it to be “medically indicated to protect the life or physical or mental health of the pregnant individual.” As under Roe, the exception swallows the rule. Nothing prevents mere distress from justifying abortion at any point before birth.

Although the amendment imposes policies that seem inconsistent with public opinion, Proposal 3 has as high as 61.6% support in one recent poll. That disparity can be explained in part by the state’s Republican lawmakers’ refusal to consider relaxing the 1931 law. It’s a principled position, but it’s also highly unpopular.

This was made clearer in August, when Kansans voted 59% to 41% to keep their state’s constitutional protection for abortion. When voters believe they’re presented with an all-or-nothing decision on the issue, most are usually inclined to take the former. In ducking that unfortunate reality, Michigan Republicans risk irreparably damaging the pro-life cause.

If Proposal 3 fails, Michigan’s Supreme Court will proceed with the appeal of the 1931 law. The state high court has a 4-3 Democratic majority, which would become 4-3 Republican if GOP candidates win both seats that are up next month. In that event the Democratic majority might speed up the process and rule before the new term begins on Jan. 1 that the Michigan Constitution protects a right to abortion—though presumably not as expansive a right as Proposal 3’s.

This dynamic provides a convenient out for Republican gubernatorial nominee

Tudor Dixon.

When asked about the issue in this week’s gubernatorial debate, she said: “The people will decide what they want to do. . . . Abortion rights will be decided by Proposal 3, or it will be decided by a judge.” When pressed again on whether she’d favor amending the law, she demurred.

Republicans are trying to have it both ways, refusing to compromise while avoiding political responsibility for an uncompromising position. The wiser course would be the opposite: not to abandon their principles, but to understand their constituents’ present limits, enact restrictions that have more popular support, and do the hard work of forming a pro-life consensus over the long run.

When the U.S. Supreme Court took on abortion, the Republicans who control Michigan’s Legislature sat on their hands. They had an opportunity to pass legislation amending the 1931 law—by imposing, say, a ban on abortion after 15 weeks—only to have Ms. Whitmer veto it. Doing so would have given them the opportunity to show voters what they would do if not for their extreme governor.

Instead, they countered the Democratic “blueprint” with nothing, which may ensure a political defeat.

Mr. Tomaino is an assistant editorial features editor at the Journal.