Opinion: Proposal 3 passed, but Michigan Democrats must repeal 1931 abortion law

Marchers head through Greektown in downtown Detroit during the Reproductive Rights March: Fight for Abortion Justice in Detroit on October 2, 2021.
The rally and march through downtown started at 36th District Court where speakers talked about abortion-rights and what is happening in parts of the country with a woman's right to choose.
Marchers head through Greektown in downtown Detroit during the Reproductive Rights March: Fight for Abortion Justice in Detroit on October 2, 2021. The rally and march through downtown started at 36th District Court where speakers talked about abortion-rights and what is happening in parts of the country with a woman's right to choose.

Since the U.S. Supreme Court overturned its 1973 ruling in Roe v. Wade, I've oscillated between complete certainty that voters would of course pass Proposal 3 ― a ballot initiative to protect not just abortion rights, but access to birth control and other reproductive care by amending the Michigan constitution ― and an equal measure of conviction that they absolutely would not.

But nearly 57% of Michigan voters cast ballots in favor of Prop 3 in last Tuesday's election, running ahead even of popular Democrats like Gov. Gretchen Whitmer (who easily won re-election with 54% of the vote) and sweeping a new Democratic majority into the state Legislature.

More:Michigan voters approved abortion rights amendment. Here's what happens next.

For women who felt the loss of Roe as denial of personhood, the passage of Proposal 3 is a satisfying moment ― even if it still rankles that our fellow Michiganders were invited to weigh in on our autonomy.

More:Proposal 3 on abortion access could leave questions for Michigan Supreme Court to decide

Proposal 3 is especially important to Michigan women because an archaic state law makes abortion a crime in nearly all circumstances, and prescribes prison time for doctors and nurses convicted of administering the procedure. The 1931 law was rendered unenforceable by Supreme Court's ruling in Roe, but never repealed during Roe's 49-year tenure. Why bother, when Roe had rendered the law irrelevant?

Michigan's new Democratic legislative majority should not make the same mistake. Democrats are compiling a long list of laws to repeal and policies to pursue, like right-to-work and the retirement tax ― but the new Legislature's first act should be to repeal the 1931 abortion ban.

Exorcising the ghosts of 1931

Yes, Prop 3 is a constitutional amendment, superseding any state law. Yes, repeal of the 1931 ban would be largely symbolic.

Do it anyway.

The new legislative majority owes its status in part to pro-choice Michiganders who came out to cast ballots for Prop 3 and for pro-choice lawmakers ― and against Republican candidates who vowed to uphold the 1931 ban.

So: Repeal the 1931 law, and burn a little sage to exorcise its ghost. Make this Senate Bill 1. As a symbol, it's an important one, and there is no downside to repeal. And honestly? We all thought that law was irrelevant for 49 years, until suddenly it wasn't. Getting it off the books will let Michiganders like me breathe a sigh of relief.

Because — I'm sorry to have to tell you — this is not over.

There are certainly cynical politicians who wield opposition to abortion rights for their own political advantage ― state Supreme Court Justice Brian Zahra, a Right To Life-endorsed abortion opponent whose ex-wife publicly shared the story of an abortion she had when the couple was young and dating, was re-elected last week. And there are certainly politicians who long for the days when white men stood firmly atop the social hierarchy, and who see reversing women’s ability to control whether and when they become pregnant as essential to restoring the old world order.

But there is another group of Americans who simply believe abortion is murder. For them, the reversal of Roe was not a political calculus but a moral mandate. That group cheered the restoration of the 1931 law; now, with abortion rights restored, they’ll find new faith in the fight ― and so long as these true believers comprise a significant electoral bloc, so will the politicians who see advantage in motivating them.

The coalition that opposed Prop 3 warned of an onslaught of lawsuits challenging the amendment. John Bursch, a constitutional lawyer who has represented the coalition, was not available for comment this week. Some legal experts expect Prop 3's foes to try to stop its inclusion in the Michigan Constitution, set for Dec. 23, 45 days after the election. It's not likely that such suits will find a receptive audience on Michigan's Supreme Court, but the presumption of failure isn't likely to stop abortion rights foes from trying.

Republicans went for broke

For decades, such groups across the country have thrown everything at the wall: unenforceable abortion bans; TRAP laws ("Targeted Regulation of Abortion Providers") like like 24-hour waiting periods and unnecessary architectural requirements for clinics that have no basis in medical need, intended to make obtaining abortions more burdensome. (The Legislature should go on and repeal those regulatory overreaches, too.) Eventually, it worked. The precipitating event in the overturn of Roe was the Mississippi Legislature's passage of a law banning abortion after 15 weeks ― the exact kind of law previous, more neutral, courts had declared unconstitutional under the 1973 precedent. An abortion clinic in that state sued, the case landed at the U.S. Supreme Court, now dominated by conservatives, and Roe was overturned.

No one is more keenly aware of this than Michigan Attorney General Dana Nessel. As an attorney in private practice, Nessel led the battle to legalize same-sex marriage in Michigan, a decade after voters had approved a constitutional amendment banning it in this state. Nessel says if legal challenges emerge, her office will vigorously defend Prop 3.

For decades, the anti-abortion movement lobbied for the overturn of Roe, saying regulation of abortion should be returned to individual U.S. states. But when the Supreme Court did just that, Michigan conservatives squandered the opportunity to pass a more moderate statute, instead praising the 1931 ban, elevating candidates who vowed to leave it intact, and warning of dire and largely imaginary consequences should the ballot proposal pass: Gender reassignment surgery or sterilization for grade-school children, sans parental consent or even notification; abortion “up until birth,” a procedure that does not actually exist; a floodgate of abortions performed by providers with dubious medical credentials.

Voters didn't buy it.

Michigan Republicans had a chance to participate in deciding the future of reproductive rights in this state, and they opted out. They made this a zero sum game, betting the house on the 1931 law and the failure of Prop 3 ― despite copious data showing that they were badly out of step with Michigan voters.

And, I'm afraid, lessons have not been learned. The anti-abortion-rights movement is promising more of the same, an endless attack on a right Michiganders haves made abundantly clear we value. It's disheartening, it's exhausting, and it will never be over.

Nancy Kaffer is a columnist and member of the Free Press editorial board. She has covered local, state and national politics for two decades. Contact: nkaffer@freepress.com. Become a subscriber at Freep.com. 

This article originally appeared on Detroit Free Press: Opinion: Prop 3 passed, but Michigan Dems must repeal 1931 abortion law