Susan J. Demas: Tyranny of the 3%: How abortion law gets made in Michigan

June 26, 2019 7:11 am

“Stop the Bans” pro-choice rally, May 21, 2019 | Ken Coleman

If you’re a woman living in Michigan, your right to make essential health decisions for you and your family could soon be decided by 340,047 people who may not know what’s on the petitions they’re signing.

“Stop the Bans” pro-choice rally, May 21, 2019 | Ken Coleman

There are currently two sweeping anti-abortion ballot measures that have cleared the first hurdle with a state board. One would ban a standard abortion procedure, dilation and evacuation (D&E), which is often used in the second trimester in the case of severe health problems for the mother and/or fetus. The other is essentially a total ban, as it would outlaw abortions around six weeks, before many women even know they’re pregnant.

Now you may logically believe that this is no big deal because voters will shoot these proposals down. After all, a recent Detroit News poll shows a strong 58% majority opposes banning the D&E procedure — considered the more “moderate” measure.

If this doesn’t sound familiar, it’s because anti-abortion advocates use the medically inaccurate term “dismemberment abortion” as scaremongering. Glengariff Group pollster Richard Czuba, who conducted the Detroit News survey, gave some insight into their strategy.

“The pro-life movement wants to use graphic words and describe things to scare people and horrify them, but when you present a straightforward neutral reading of this it is not popular at all,” he said.

But you would be wrong to assume this will never become law, thanks to a quirk in Michigan election law.

Michigan Capitol, March 22, 2019 | Susan J. Demas

What anti-abortion groups have figured out is for citizen-led initiatives, all you need to do is collect signatures from 8% of the number of registered voters who participated in the last gubernatorial election. That number comes out to 340,047 for this cycle, which is roughly 4.5% of registered voters and just 3% of Michigan’s total population.

So if a group gathers the requisite number of signatures, the measure then goes before the Legislature, which can adopt it. Obviously, we know that’s what the current GOP-controlled Legislature will do with the D&E ban, since both the House and Senate already passed similar measures on Right to Life of Michigan lobby day in May. (That’s a very explicit thank-you to lobbyists, which is usually considered a big ethical no-no, and yet these votes somehow get portrayed by many media outlets as a grand show of morality).

Republicans pass abortion ban on Right to Life lobby day

The ballot measure also contains an authoritarian flourish. Remember that bill from Lame Duck that would have allowed either the Michigan House or Senate to intervene in litigation as an end-run around soon-to-be Attorney General Dana Nessel because they didn’t believe the Democrat had the right to do her job?

GOP Gov. Rick Snyder was in legacy-building mode and rightly vetoed it. But Right to Life lobbyists resurrected the provision in their anti-abortion initiative because Nessel has said she won’t prosecute women or doctors if abortion becomes illegal. The Constitution’s separation of powers is for suckers, evidently.

Attorney General Dana Nessel speaks at the Planned Parenthood summit, April 16, 2019 | Susan J. Demas

So the measure is anti-woman and anti-democracy, which is a pretty apt description of the Republican Party in the Trump era.

It’s also likely that the other ban, which anti-choice lobbyists are inaccurately marketing as a “heartbeat bill,” will pass the male-dominated, GOP-dominated chambers, as well. Ohio, Georgia and Missouri have passed similar bills, while Alabama dropped any rhetorical pretense and just straight-up banned abortion.

That’s because anti-abortion lobbyists are chomping for their bill to be the one that lands in the lap of the most conservative U.S. Supreme Court in modern history. Many legal experts, including Nessel, believe that the High Court will overturn Roe v. Wade in the next few years.

Now you may logically believe that because Michigan overwhelmingly elected a pro-choice Democratic governor, Gretchen Whitmer, there’s nothing to worry about in our state.

But again, you would be wrong. Because the GOP-led Legislature has the right to adopt these anti-abortion initiatives, thus enacting them into law — with no governor signature required.

Will Michigan have 2 abortion bans on the 2020 ballot? Probably not.

So anti-abortion lobbyists have essentially cut both the governor and attorney general — who just happen to be pro-choice moms — out of the equation. What a neat trick!

You may think there’s a hail Mary pass here because groups, including Right to Life, opposed a Lame Duck bill making it harder to get measures on the ballot. That new law, which is mired in court, caps the number of signatures in any one congressional district at 15%.

A protestor demonstrates during a Dec. 12, 2018, rally in the Capitol | Ken Coleman

While that’s a problem for grassroots efforts like Voters Not Politicians, which successfully pushed a redistricting initiative last year, it’s not a big obstacle for exceedingly well-funded operations that can pay signature-gatherers to fan out all over the state.

Maybe, just maybe, that’s why anti-abortion lobbyists didn’t twist too many arms fighting the legislation.

And here’s the best part. Under Michigan law, these petition circulators can lie to you. Sure, you can flip a petition over and read the entire text of the law — but most people don’t know that. And if you don’t think that groups don’t take advantage of this, I have a bridge to sell you. (Oh, wait. Michigan Republicans are way ahead of me there).

So, yeah. Just 3% of Michigan’s population gets to dictate awful laws to the rest of the state. And even though Republican lawmakers know these anti-abortion measures are unpopular, the vast majority represent heavily gerrymandered districts, so they know there are probably no electoral consequences.

That’s why anti-abortion lobbyists have exploited this anti-democratic loophole four times since Roe v. Wade was decided.

Whitmer on MSNBC: Female officials tell ‘our sad, toughest’ stories to show impact of anti-abortion laws

Most recently in 2013, they showed Snyder who was boss by getting their “rape insurance” law enacted after he vetoed a measure banning health insurance companies from covering abortion (because the free market doesn’t apply to women, even rape survivors).

As a senator, Whitmer courageously shared her story about being raped in college to try to convince her Republican colleagues to vote no. They ignored her. And five years later, her GOP gubernatorial opponent, Bill Schuette, abhorrently used a photo of her on that day in a hit piece because she looked upset.

Michigan voters overwhelmingly rejected Schuette and his anti-abortion agenda. But thanks to outdated laws and clever conservative lobbyists, we’ll probably soon be living under his politics anyway.

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Susan J. Demas

Susan J. Demas is a 23-year journalism veteran and one of the state’s foremost experts on Michigan politics, appearing on C-SPAN, MSNBC, CNN, NPR and WKAR-TV’s “Off the Record.” In addition to serving as Editor-in-Chief, she is the Advance’s chief columnist, writing on women, LGBTQ people, the state budget, the economy and more. For almost five years, Susan was the Editor and Publisher of Inside Michigan Politics, the most-cited political newsletter in the state. Susan’s award-winning political analysis has run in more than 100 national, international and regional media outlets, including the Guardian U.K., NBC News, the New York Times, the Detroit News and MLive.