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Lansing Update: How Abortionists Get Away with Malpractice Under Prop 3

Posted October 28, 2022

In this update:

Abortionists Protected from Malpractice Liability Under Prop 3

The following is part of a seven-week statewide education campaign to inform Michigan Catholics about Proposal 3 and urge them to vote no on this unlimited expansion to abortion.

As part of that series, Michigan Catholic Conference (MCC) will run a seven-part series breaking down the most concerning parts of the proposal. The articles were authored by John Bursch, a constitutional lawyer and former Michigan Solicitor General who represents MCC.

The following is part six of the seven-part series on Proposal 3:

This is now our sixth week discussing the startlingly broad language of Proposal 3 (the “Reproductive Freedom for All” proposal).

In addition to violating the Church’s teaching that every human life is sacred and must be protected from conception, the proposal allows minors to obtain sterilizations as well as abortions without parental consent or even notice, effectively allows abortion on demand through nine months of pregnancy, prevents the state from protecting unborn life or stopping discrimination based on a baby’s sex, race, or disability, and effectively exempts abortionists from health and safety regulations.

It gets worse. In subsection (3), Proposal 3 says that the state shall not “penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting” a mother in obtaining an abortion. That means if a teacher or counselor takes a student to obtain an abortion without notifying the child’s parents, there are no legal consequences. If someone assists with an abortion — even if they have no medical license or training whatsoever — there can also be no legal consequences.

Most bizarrely, if an abortionist engages in gross negligence and severely harms or kills the mother as well as her child during an abortion, he will have a constitutional defense to any malpractice claim: Michigan’s Constitution would prevent the state from imposing an “adverse action,” i.e., a state-court judgment, against him.

No matter how a voter feels about abortion, Michigan’s Constitution should not be amended to allow non-medical providers to assist in abortions and to absolve abortionists of medical-malpractice liability. Please tell everyone you know: vote “NO” on Proposal 3 on November 8th.

John Bursch is a constitutional lawyer and former Michigan Solicitor General. Through Alliance Defending Freedom, he represents the Michigan Catholic Conference and Right to Life of Michigan in court to uphold Michigan’s pro-life laws.

An Explainer on How Proposal 3 Invalidates Parental Consent, Health & Safety Laws

In advocating a no vote on Proposal 3, we have said that if it were to pass, it would invalidate numerous state laws, like parental consent requirements and health and safety standards on abortion clinics.

We wanted to take a moment to explain how we can arrive at those conclusions.

The first clue is in the ballot summary language, which is what voters will see on their ballots. The very last bullet point says Proposal 3 would “invalidate state laws conflicting with this amendment.”

Supporters have argued the intent is to cancel out the state’s 1931 law that prohibits abortion except in cases to save the mother’s life. Yet the word “laws” is plural, implicitly suggesting the amendment authors intended to cancel out more than just one law.

The language creates a “fundamental right to reproductive freedom,” which it defines as the “right to make and effectuate decisions about all matters relating to pregnancy,” and then goes on to list what is included, specifically naming abortion.

Later, the amendment language stipulates the right to reproductive freedom cannot be “denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.”

Legal experts refer to this language as the strict scrutiny test, and such a standard is a tough one for any state law affecting a constitutional right to be upheld if it were challenged in court.

However, Proposal 3 takes the strict scrutiny standard even further by narrowing the definition of what a “compelling state interest” can be.

According to the language, a state interest is only compelling if “it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.”

The wording of the language suggests that all three prongs listed in the definition must be met for a state interest — a law affecting the right — to be considered compelling, and thus, valid.

But the last point is especially problematic: A law could not “infringe on that individual’s autonomous decision-making.” On its face, no regulation or restriction would pass this test if it infringed on a person’s decision-making, given that essentially any enacted regulation or restriction affects a person’s decision-making.

When this language is applied to current laws, it demonstrates why this amendment would be so dangerous for Michigan.

For instance, it is currently law that a minor child must get her parents’ consent before seeking an abortion. Yet such a requirement could be challenged as infringing on that teen’s “autonomous decision-making.” And, the amendment refers to it as an “individual’s” decision, meaning it would apply to both adults and children.

When it comes to health and safety standards, take for example the informed consent requirements for abortion, such as the 24-hour waiting period for women to review the information they receive before getting an abortion.

While this law might appear to pass the first or second prongs, the problem is that if abortion clinics don’t agree with informed consent requirements, they could challenge the law in courts and say it’s not an accepted clinical standard of practice or considered necessary for protecting the health of the woman seeking care.

If it seems unlikely abortion clinics would do that, one must keep in mind that Planned Parenthood opposed 2012 legislation that would require abortion clinics to be licensed and inspected like other outpatient facilities. And Planned Parenthood backed legislation introduced as recent as last year that would repeal the 2012 law that brought abortion clinics in line with surgical outpatient facilities.

The concern here is that existing health and safety regulations would fall to the wayside in favor of what the abortion industry prefers. And most people would agree that industry of any kind should not be allowed to regulate themselves, yet this proposal would do exactly that.

Proposal 3 would create a “fundamental right” to “reproductive freedom” that includes abortion that would be insulated from reasonable restrictions because it bars any laws that would “infringe on an individual’s autonomous decision-making.”

Because of this incredibly broad language, Proposal 3 must be rejected as too dangerous and extreme for Michigan.

Physicians Launch Education Effort Against Proposal 3

This week, the campaign against Proposal 3 launched the beginning of a physician-led selfie video campaign to raise concerns about the amendment.

Dr. Michelle Monticello

The education campaign, dubbed “Physician Facts 4U: Dangers of Prop. 3,” was prompted by the growing sentiment among many physicians that the true impact of Proposal 3 was being covered up.

Three doctors who have already posted videos explaining their concerns are Michelle Monticello, MD; board-certified OB/GYN serving more than 25 years in practice, Ian Jackson, MD; a board-certified family medicine physician, and Joanne Castillo, MD, board-certified family medicine physician.

“This extreme measure also does the unthinkable by willfully removing regulations that ensure basic health and safety standards are met at abortion clinics,” Dr. Monticello said in her video. “Regardless of one’s position on abortion, the idea that meeting basic standards for cleanliness, among other things, is somehow an extraordinary measure is a threat to patient safety and clinic care standards in every medical specialization. Women should be very concerned.”

The campaign plans to share more videos made by physicians at its website.

Now is the Time to Knock on Doors to Defeat Proposal 3

Have you considered joining the campaign to defeat Proposal 3 by knocking on doors?

Knocking on doors and connecting directly with voters is one of the most effective ways to get the word out against Proposal 3. It takes dozens of volunteers to canvass neighborhoods across the state, and any help is needed as we draw closer to Election Day. These conversations are changing people’s opinions about Proposal 3, including people who consider themselves pro-choice, so these efforts are crucial.

Fortunately, there is an easy way to connect with door-knocking campaigns that may be going on near you by visiting this link. In addition, your parish may be conducting canvassing operations, so contacting your parish is another way to get involved.

Training and materials are available for canvassers, and you will never have to go out alone. Pitch in and join the effort to defeat Proposal 3 by connecting with voters through door-to-door outreach today.

Register to Vote if You Have Not Already

Have you registered to vote? At this point before the election, if you have not, you can register to vote and vote in person up until and on Election Day at your city or township clerk’s office. To find your local clerk, click or tap here.

According to the Secretary of State’s office, you must bring proof of eligibility and residency.

To be eligible to register to vote you must be:

To show proof of where you live, the appropriate document must have your name and current address, and digital copies are OK. Acceptable documents include:

For more information about voting, visit the Michigan Voter Information Center.