Michigan Supreme Court puts abortion on the November ballot

The Michigan Supreme Court ruled 5-2 on Thursday to certify a sweeping abortion rights initiative for the November ballot, giving voters in the swing state a chance to decide whether the procedure remains legal or whether a nearly 100-year-old ban goes back into effect.

The decision means Michigan joins several other states where voters will have a say this fall on whether and to what extent abortion is legal post-Roe v. Wade — with votes also scheduled in California, Vermont, Kentucky and Montana. Along with a slew of pending court cases and state legislative battles, these November ballot initiatives could remake the country’s abortion access map at a time when the number of states implementing near-total bans is climbing.

The Michigan Supreme Court’s emergency ruling overrides last week’s party-line tie vote by the Board of State Canvassers, which blocked the certification of the proposed constitutional amendment. The two Republicans on that panel sided with conservative groups that argued spacing and formatting errors on the text canvassers presented to voters rendered the entire effort invalid.

Chief Justice Bridget McCormack blasted those officials for that decision, writing in her ruling Thursday: “Seven hundred fifty three thousand and seven hundred fifty nine Michiganders signed this proposal—more than have ever signed any proposal in Michigan’s history. The challengers have not produced a single signer who claims to have been confused by the limited-spacing sections in the full text portion of the proposal. Yet two members of the Board of State Canvassers would prevent the people of Michigan from voting on the proposal.”

McCormack added that using spacing errors to justify keeping the measure off the ballot is “a game of gotcha gone very bad” and commented: “What a sad marker of the times.”

Two justices dissented, arguing that the court should have held oral arguments on the case before issuing a ruling and that the claims raised by the challengers are legitimate.

“It may have the right words in the right order,” Justice David Viviano said about the abortion rights petition, “but the lack of critical word spaces renders the remaining text much more difficult to read and comprehend.”

Citizens to Support MI Women and Children, the group anti-abortion activists in the state formed to campaign against the ballot measure, had argued in a court filing that the Reproductive Freedom for All amendment included “nonsensical collections of letters that are not words” and should therefore not be allowed on the ballot.

The coalition supporting the amendment responded that denying the certification “disenfranchised the more than 730,000 Michigan voters who read, understood, and signed these petitions.”

Michigan’s Democratic Attorney General Dana Nessel — who is up for reelection this year — submitted a brief noting that the U.S. Constitution also had a variety of spacings between words.

“If they truly believe that those spacing and typographical issues should prevent this measure from becoming law, they don’t lose the ability to challenge it if it passes,” Nessel said in a video posted Thursday. “But if they keep the ballot proposal off, then there’s no opportunity to even get to that place because you haven’t allowed voters to have their say at all.”

Abortion-rights activists spent much of this year gathering signatures from all 83 counties in the state — far exceeding the roughly 425,000 required to qualify. The progressive groups pushing the measure submitted the signatures to the state bureau of elections in early July, and the bureau in early August recommended it be certified after finding that the vast majority of the signatures were valid. Neither the conservative outside groups nor the Board of Canvassers challenged the authenticity or number of signatures.

The proposed amendment would insert protections into the state’s constitution for abortion as well as other reproductive health services, including miscarriage management, birth control, prenatal care and in-vitro fertilization. It would also stop the state’s 1931 abortion ban from going back into effect should state courts uphold it in two pending cases involving lawsuits brought by Planned Parenthood and Democratic Gov. Gretchen Whitmer. The ban, which has no exemptions for rape or incest, remains blocked by a state court.

The freeze on the 1931 law was extended Wednesday by Michigan Court of Claims Judge Elizabeth Gleicher, who ruled that it violates the state constitution because it would “deprive pregnant women of their right to bodily integrity and autonomy and the equal protection of the law.” Her decision will likely be appealed, and abortion-rights advocates see the ballot initiative as the only surefire means of protecting abortion access in the state.