Michigan is at the forefront of the fight for abortion rights It’s one of the many states that has an old law on the books that criminalizes abortion. A judge has suspended the law—but conservative lawyers want that decision appealed. Should they succeed, the 1931 law could, after Roe is overturned, become enforceable and make anyone who provides abortion—a health care service—guilty of a felony.
Abortion rights activists in the state, where I live and have worked as a political reporter, are taking matters into their own hands, and collecting signatures for a ballot initiative that would guarantee abortion rights in the state constitution. Michiganders aren’t the only ones reverting to the ballot to enshrine abortion rights: in Vermont, there’s an effort to make them part of the state constitution (there’s no trigger law against abortion in Vermont; this would prevent any future laws from taking away the right to an abortion). In other states, we’re also seeing the opposite happen: In Kansas and Kentucky they want to pass measures to amend the Constitution to say that there isn’t a right to an abortion
On a recent episode of The Waves, Slate’s podcast on gender and feminism, I spoke with Mark Joseph Stern, Slate senior writer covering the courts and the law. We talked about how ballot initiatives have been used in the past, and just how useful they’ll be going forward. Mark also had some very specific advice on what those who want to fight for health care access should be doing urgently. Our conversation has been condensed and lightly edited for clarity.
Cheyna Roth: Mark, I feel I usually see anti-abortion groups going to the ballot for measures they want, but are pro-choice groups starting to sort of take a page from their playbook?
Mark Joseph Stern: That’s exactly right. For many years, abortion foes have promoted ballot initiatives to restrict access to reproductive healthcare and also override state courts that rule in favor of abortion, and of course, push the limits of Roe v. Wade to see how far the Supreme Court would go to allow abortion restrictions.
Since 1970, 84 percent of statewide ballot measures relating to abortion were designed to restrict access, not expand it. That lopsided figure is largely a result of the status quo under Roe, where progressives were generally happy, if not perfectly content, with the baseline guarantee of the right to abortion before viability. Conservatives, on the other hand, used every tool at their disposal to roll back that right, even with Roe still on the books. In a lot of Red States, direct democracy proved to be a pretty potent weapon. Now with Roe about to fall, the energy is really shifting. Suddenly you see almost every red state poised to enact a complete or near total ban on abortion the moment Roe is off the books, but the progressives in blue and purple states are scrambling to enshrine reproductive rights into their state laws once Roe’s baseline guarantee disappears.
In Michigan, there have been quite a few anti-abortion ballot initiatives, but I don’t know that there’s been this level of excitement for either side when it comes to abortion initiatives in the past. They need 425,000 ballot signatures by July 11th, and it sounds like they are very much well on their way to getting enough signatures to potentially get this on the ballot for the people to vote on. I have seen people out there gathering signatures for this initiative in ways that I haven’t seen for others. So given this level of excitement, I’m surprised that more states don’t have similar initiatives for the midterms.
A big part of that is how Roe’s imminent demise kind of crept up on a lot of the country. People like me have been screaming since Amy Coney Barrett joined the court, even since Brett Kavanaugh joined the court, that Roe was in serious jeopardy. But for whatever reason that didn’t seem to register until first, the Supreme Court allowed the Texas ban to stand back in the late fall. That is the law that allows any stranger to sue an abortion provider or anyone who facilitates an abortion for $10,000 if they perform the procedure after six weeks of pregnancy.
Then of course on May 2nd, this draft opinion leaked from the Supreme Court. I think not only reading that draft, but seeing it already laid out in the format of an official opinion really made a dent in peoples’ psyches. They were like, “Oh my God, this is real.”
The problem here is that the initiative process is often really cumbersome and time-consuming. You have to gather a gazillion signatures. I mean, in Michigan, it’s 425,000. In other states it’s even more. Then you have to make sure that enough of them survive the inevitable challenges from your opponents, which can be really time-consuming. Go through signature by signature, making sure it’s legible, making sure that person is a valid voter, didn’t sign twice, whatever. Then you have to make sure your initiative survives other legal challenges in the courts. There are just so many veto points that activists have to make sure that they do literally everything right, and even then that’s not always enough. So, it takes years of preparation and execution. It’s not the kind of thing you can do off the cuff.
You’ve called Michigan the most prominent success story so far when it comes to purple states.What is it doing that other purple states could learn from aside from the ballot initiative?
Reproductive rights advocates have launched a kind of two-pronged approach. First, they filed a regular lawsuit asking a lower court judge to strike down that 1931 abortion ban. They prevailed. They convinced this lower court judge to issue an injunction that bars the enforcement of that ban from 1931. The attorney general of the state is a Democrat, and she said she’s not going to appeal that decision. So, if Roe fell tomorrow, even absent any other action here, Michigan still would not be able to enforce its anti-abortion law because it is on hold in the courts.
At the same time, the democratic Governor of Michigan, Gretchen Whitmer, has asked the state Supreme court to declare that as a matter of state law, the Michigan Constitution protects the right to abortion already. If the court agrees, it will not only strike down that 1931 ban, but also potentially a bunch of other restrictions that Republicans have put in place over the last few decades. So, the irony here is that after Roe falls, Michigan might end up with more liberal and permissive abortion laws than it has right now as we speak.
While people are debating next moves in this likely-post-Roe world, what do you think is the best thing that everyday citizens should be doing?
Donating to abortion funds honestly. Until we get this mess sorted out, which in my view will take the next 30 to 50 years, the most helpful thing that individual advocates for reproductive rights can do is pay to ensure that people in need can terminate their pregnancies.
When I talk to progressive groups about this stuff, they always ask at the end, “Well, what can we do?” Aside from voting for pro-choice politicians and signing these initiatives and whatever, I say, “You need to tithe. Think of this as a tithe. You should be opening your wallet to abortion funds, especially in the South right now, but soon in the Midwest as well, so that women can get the money that they need to hop on a plane and miss work and take unpaid leave to terminate the pregnancy that they got for whatever reason. If you are not actively subsidizing reproductive healthcare and ensuring that people can get the care they need where and when they need it, then you are really kind of betraying them and betraying the cause that you claim to stand for.”
Vote, then tithe.
That fits on a bumper sticker.