Michigan and Ohio pro-lifers push back on “abortion rights”

On the morning after Election Day 2023, Right to Life of Michigan president Barbara Listing stood on the steps of Michigan’s capitol building in Lansing, wearing a nearly ankle-length purple coat with a fuzzy hood. “We all hoped for … sunshine,” she said, addressing the massive crowd gathered in the cold for the state’s first March for Life. “But perhaps a dark and gloomy day is appropriate for our first anniversary of the passage of the horrendous Proposal 3.”

Just a year before, Michigan voters approved an amendment that added a right to abortion to the state constitution. Proposal 3 passed 56.7 percent to 43.3 percent. The day before Listing’s speech, 56.6 percent of voters in Ohio approved Issue 1, a ballot measure that proposed a similar pro-abortion amendment.

Although the two amendments passed a year apart, election week 2023 showcased new efforts to challenge both of these new constitutional rights to abortion. Without the support of the majority Democrat legislature, Michigan pro-lifers are turning to the federal courts in an attempt to dismantle the state’s pro-abortion amendment. In Ohio, where Republicans have a supermajority in both legislative chambers, lawmakers are weighing possible legislation to mitigate the effects of Issue 1. The outcomes could serve as test cases for the rest of the country, as pro-abortion groups in a handful of other states—including Florida, Missouri, and Virginia—pursue similar amendments.

During her talk at the Michigan March for Life, Listing announced a lawsuit filed that morning by the American Freedom Law Center on behalf of Right to Life of Michigan and 15 other pro-life organizations and individuals. The lawsuit argues that the state’s new constitutional right to abortion deprives unborn babies of their right to equal protection under the law. It also says the amendment infringes on the federal rights of pregnant women, parents, medical professionals, and lawmakers in Michigan. The plaintiffs have a tall order: they want the U.S. District Court for the Western District of Michigan to permanently enjoin the amendment to the Michigan constitution that declares a right to abortion.

Right to Life of Michigan legislative director Genevieve Marnon said she started having conversations about next steps immediately after Proposal 3 passed last November. An exchange with a constitutional attorney snowballed into a meeting with a dozen attorneys at Marnon’s office in Lansing, she said. “We sat around the room, …and we really dissected the language of Proposal 3. And we all came to realize that this violates the federal constitution on several levels,” Marnon said.

The first argument to “jump off the page,” she said, was that Proposal 3 renders pregnant women less protected than nonpregnant women in the state. The amendment prohibits the state from taking action against someone “for aiding or assisting a pregnant individual in exercising their right to reproductive freedom” as long as the pregnant woman gives voluntary consent. The lawsuit says this means the amendment takes away legal protections for women for injuries they might suffer in the course of an abortion or other reproduction-related procedures.

Local news outlets call the lawsuit a long shot. Steven Aden, chief legal officer and general counsel for Americans United for Life, said the U.S. Supreme Court and state courts will eventually have to settle the question of whether the 14th Amendment protects unborn human life. But he agreed that a lawsuit asserting constitutional protection for unborn babies will be difficult. “It’s a relatively novel argument, and there is little precedent for it,” Aden explained.

Marnon said the first lawsuits filed after the Supreme Court’s Roe v. Wade opinion in 1973 must have looked like long shots, too. “If you don’t start someplace, you’re never going to get anywhere,” she said.

In Ohio, with its majority Republican legislature, the pro-life response to that state’s constitutional amendment seems likely to take the form of legislation. In a Nov. 9 statement, four Republican lawmakers said the legislature would consider removing jurisdiction from the judiciary regarding the amendment “to prevent mischief by pro-abortion courts with Issue 1.” The legislators said “the Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.”

One of the lawmakers, Rep. Jennifer Gross, discussed her plans for a bill that would bar the judiciary from taking up cases related to Issue 1 at a town hall on Nov. 13. Local news outlets blasted the proposal as unconstitutional, and even Ohio House Speaker Jason Stephens, a Republican, seemed to rebuke the idea in comments to reporters, according to the Cincinnati Enquirer.

Gross told me that Congress’ history of withdrawing jurisdiction from federal courts in certain gun-related cases serves as a model for this approach.

Andy Schlafly, son of the late conservative activist Phyllis Schlafly, is one of the attorneys working with Gross on the legislation. He said multiple court rulings in Ohio have affirmed the state legislature can similarly withdraw jurisdiction from state courts. He pointed to precedents denying a court’s jurisdiction in certain matters—one involving an application for immunity in a criminal case and another involving alleged interference during a horse race. Schlafly also cited portions of the Ohio Constitution that suggest the legislature can pass laws to limit the power of the judiciary.

But Melanie Elsey, national legislative director for the Ohio-based American Policy Roundtable, said other portions of the Ohio Constitution seem to contradict this interpretation. She said any law attempting to limit the legislature’s power will face litigation, meaning the Ohio Supreme Court could end up deciding whether or not the legislature can take away the court’s own authority. Elsey said this bill doesn’t seem like a logical move but understands that others might see it as “worth a try.”

In some ways, that’s exactly Gross’ view. She said she can’t guarantee that the strategy will work or that the courts will even find it constitutional. “However, when we’re pro-life, we’ll do whatever we can to save babies,” Gross said. “And so I think that we need to take every avenue possible, we need to look at every option possible, and we need to act now.” She said other states where pro-abortion groups are pursuing similar amendments will have their eyes on Ohio to see how the state responds.

Elsey said she believes the cleanest approach to mitigating the effects of the amendment would be to pursue another constitutional amendment to repeal Issue 1 and replace it with pro-life language—a strategy her organization proposed in a Nov. 7 statement. Meanwhile, Aden at Americans United for Life believes the Ohio legislature should focus on redefining abortion in Ohio law, pointing out that the amendment does not actually define the word.

“There is opportunity here for Ohio lawmakers to step in and define what the ballot initiative left undefined and to define abortion … very narrowly and to make it clear that we’re not talking about abortion on demand,” Aden said.

Of the ongoing strategies in Ohio and Michigan, Aden said all options are “on the table,” even though he’s skeptical of some. “Every state needs to consider all viable alternatives,” he said. Aden believes that pro-abortion groups—specifically in Ohio—seemed to understand that passing an amendment would be just the beginning of a fight. That means, for pro-lifers—as Aden put it—“the game is on.”