The Michigan Court of Claims held on May 13 that state laws requiring informed consent for abortion violate the unlimited right to “reproductive freedom” that voters placed in the Michigan Constitution in 2022. This is the first of many lawsuits using these radical state charter provisions to dismantle any limits on abortion and a host of other things.
Several months after the U.S. Supreme Court held that the U.S. Constitution has never protected a right to abortion, Michigan voters added the Reproductive Freedom for All provision to their state constitution, stating that every “individual” has “a fundamental right to reproductive freedom.” It prohibits any burden on this right “unless justified by a compelling state interest achieved by the least restrictive means.”
At the time, pro-life advocates warned that this constitutional amendment would be even more radical than the Supreme Court’s abortion decisions. The court, for example, held that abortion, which ends a pregnancy, is “inherently different” from contraception, which prevents one. The Reproductive Freedom for All provision makes no such distinction.
The Supreme Court recognized that a state’s interest in “protecting fetal life” is “important” from conception and becomes “compelling” later in pregnancy. The Michigan provision does not recognize any interest in the child at any point during pregnancy.
The Supreme Court recognized that minors “lack the ability to make fully informed choices” and upheld laws requiring some kind of parental involvement in minors’ abortion decisions. By applying to the “individual,” the Reproductive Freedom for All language erased any distinction between adults and children.
The Supreme Court in Roe v. Wade created a right to abortion. The provision not only applies to “all matters relating to pregnancy” but adds the open-ended phrase “but not limited to,” guaranteeing that the people of Michigan will not know what they’ve done until the courts tell them.
The Michigan Court of Claims has begun telling them by striking down three laws intended to ensure that women have sufficient information when deciding whether to get an abortion. In doing so, the court interpreted the word “burden” in the provision to mean virtually any effect whatsoever.
Here’s an example: requiring a 24-hour waiting period between a woman receiving relevant information and having an abortion is a “burden” because it “prolongs the wait time.” There’s no disputing that adding wait time does indeed, well, prolong wait time, the court deemed this “burden” sufficient to make the law unconstitutional.
Or this example: requiring a doctor to confirm a pregnancy and the child’s gestational age is a “burden” even though failing to do so “would surely lead to a medical malpractice case.” Those steps may be important to sound medical practice but requiring them makes the law unconstitutional.
Here’s another: even though the expert witnesses agreed that screening women to make sure they are not being coerced to get an abortion “is a necessary step in abortion” practice, a law requiring them to do so violates the Reproductive Freedom for All provision.
The court made one thing abundantly clear. “Under the plain language of the RFFA, the only compelling state interest can be the health of the patient seeking care.” In other words, a state may do nothing to protect the child in the womb. Ever. The only thing that matters is the decision whether to destroy that child.
What may come next is a challenge to laws aimed at preventing exploitation of minors. Under the “plain language” of the provision, however, someone who assists a minor in deciding to abort, and even helping her actually get one, cannot be prosecuted. They could do so without the child’s parents ever knowing about her pregnancy. Schools may require parental notice and permission for their daughters to get an aspirin, but requiring parental notice about something as profound as an abortion for their daughter would be impossible.
Laws prohibiting taxpayer funding of abortion might be the next to fall. Courts in a few states have already found that funding restrictions violate equal rights amendments in those states’ constitutions. It won’t take much to claim that having to pay for an abortion “burdens” the decision whether to get one.
Since 2022, voters in Ohio and several more states added a similarly radical provision to their constitutions and voters in other states will be pushed to do so in upcoming elections. Abortion zealots intend to achieve state-by-state something that the Supreme Court never even imagined, an abortion free-for-all with no limits, no protections, no recognition that the human beings killed by abortion matter at all.
This article was originally published at www.dailysignal.com
