Proposal 22-3 has the chance to amend the state constitution for reproductive rights


Citizen's Research Council

The outcome of Proposal 22-3 (Proposal 3) in Michigan will determine reproductive rights within the state.

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Upon the overturning of Roe v. Wade due to the ruling in the Supreme Court Case Dobbs v. Jackson Women’s Heath Organization, the fate of reproductive rights in Michigan was up in the air. 

Roe v. Wade essentially limited the enforcement of section 14 of the Michigan Penal Code after the 1973 ruling. Section 14 of the Michigan Penal Code prohibits abortion during any point of pregnancy unless it is critical to protecting the life of the pregnant individual. This prohibition was initially passed in 1846 and was maintained when the state’s criminal statutes were consolidated in 1931. Violation of the prohibition is a felony punishable by a fine of up to $5000, imprisonment of up to four years, or both. If the pregnant person dies due to the abortion, it is considered manslaughter, which is a punishment of up to $7500, imprisonment of up to 15 years, or both. In addition to this, section 323 of the Penal Code states that an abortion provider or “any woman pregnant with a quick child” is guilty of manslaughter. When the section was passed in 1846, a “quick child” was any fetus that could be felt moving. This definition was later revised in the Michigan Supreme Court Case Larkin v. Wayne Prosecutor to mean a viable fetus. Section 323, like section 14, was retained when the state’s criminal statutes were consolidated. 

On November 8, 2022, the initiative, as Proposal 22-3 (also known simply as proposal 3), will appear on the ballots in Michigan.

Although section 14 has not been actively used in Michigan since Roe v. Wade, it was never repealed or amended. 

In April 2022, Planned Parenthood of Michigan sued the state attorney general in the Court of Claims to stop the enforcement of section 14. This lawsuit came even before the U.S. Supreme Court published its decision in Dobbs. On May 17, 2022, the judge in the lawsuit case filed a temporary injunction that blocked the enforcement of the prohibition until the lawsuit came to a resolution. The injunction allowed other laws regulating abortion in Michigan to remain in full effect. 

Governor Gretchen Whitmer, in anticipation of the Dobbs ruling, filed a lawsuit in the Oakland County Circuit Court against the prosecutors of 13 counties, including Oakland County, where there are abortion providers. The suit asked the court to prevent the prosecutors from enforcing section 14. It also asked the court to declare the prohibition invalid under the due process and equal protection clauses of the Michigan Constitution and to declare that the due process clause protects the right to abortion in Michigan. Whitmer, at the same time, asked the Michigan Supreme Court to instruct the Oakland County Circuit Court to certify the constitutional questions within the suit for the Supreme Court’s immediate consideration. The court granted Whitmer’s restraining order against the prosecutors from enforcing the law in August, which is why there hasn’t been a change in reproductive freedom in Michigan yet. 

Reproductive Freedom for All, a group formed in January 2022, created a petition to amend the state constitution to create a right to reproductive freedom and remove the effects of the section 14 prohibition. In July, the group submitted its petition of 753,759 signatures to the Bureau of Elections. The Bureau of Elections estimated that the petition had 596,379 valid signatures, and according to the voter participation in the 2018 gubernatorial race, a constitutional amendment initiative requires 425,059 signatures. The Bureau recommended the Board of State Canvassers put the initiative on the November 2022 ballot. 

A group called Citizens to Support MI Women and Children submitted a challenge to the petition. It said that the lack of spacing between words made nonsense of certain phrases. Due to this, the proposal was not approved for the ballot at the August 31 meeting of the Board of State Canvassers. Reproductive Freedom for All then filed a lawsuit with the Michigan Supreme Court challenging that result, and on September 9, 2022, the Board of State Canvassers unanimously decided to place the initiative on the ballot. 

On November 8, 2022, the initiative, as Proposal 22-3 (also known simply as proposal 3), will appear on the ballots in Michigan. If voted into law, it would amend the state constitution, so that every individual has a right to reproductive freedom, including the right to make and carry out pregnancy-related decisions. The decisions include prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility care.

The state could still regulate abortion after fetal viability, but could not prohibit it if it is needed to medically protect an individual’s life or physical or mental health. The state would not be able to discriminate in the enforcement of reproductive rights. Prosecution of abortion care providers, pregnant individuals, or people helping pregnant individuals for exercising rights established in the amendment. Proposal 3 would also invalidate any state laws conflicting with the amendment. 

With the fate of reproductive rights in Michigan relying on Proposal 22-3, it is necessary for all those of voting age to vote on the November ballot.