Right to Life sues to block Michigan's voter-approved abortion rights law
Lansing — Right to Life, three Republican lawmakers and others filed a lawsuit Wednesday asking the federal courts to intervene and overturn a state constitutional amendment that protects abortion rights in Michigan and won wide support from voters one year ago.
The filing in Michigan’s Western District court came a day after Ohio voters passed a similar “reproductive freedom” initiative enshrining abortion rights in their state constitution. As an increasing number of states look to ballot measures that have been popular with voters to safeguard abortion access, the new lawsuit in Michigan appears to be an effort to upend the strategy.
The U.S. Supreme Court in June 2022 ruled abortion laws must be left up to the states, overturning a half-century of federal abortion protections. The decision spurred Michigan voters to approve Proposal 3 in the November 2022 general election, adding the right of a woman to terminate a pregnancy to Michigan's constitution.
Wednesday's lawsuit argues the language approved by voters for inclusion in Michigan’s constitution creates a “super right” to reproductive freedom that conflicts with the First and 14th amendments of the U.S. Constitution and with constitutional guarantees to a “Republican form of government.”
The lawsuit asks for a permanent injunction stopping enforcement of Proposal 3, which is now written into the state constitution as the "right to reproductive freedom."
“At no time in our nation’s history has such a super-right, immune from all legislative action, ever been created by a popular vote outside of the checks and balances of a republican form of government,” the filing said.
Abortion became a pivotal issue in Michigan's November 2022 election, with 57% of voters supporting the measure to recognize and safeguard abortion rights through a constitutional amendment. Likewise, Democratic Gov. Gretchen Whitmer ran for reelection, vowing to "fight like hell" to protect access to abortion.
Whitmer defeated Republican Tudor Dixon, who had the backing of Right to Life of Michigan, by 11 percentage points. A Democratic sweep at the top of the ticket helped propel Democrats into the majority in the state Senate for the first time in nearly 40 years. Democrats also captured control of the House for the first time since 2010.
In a statement Wednesday, Stacey LaRouche, Whitmer's press secretary, said the governor would work to defeat the lawsuit.
"It shouldn’t be lost on people that these right-wing organizations and radical Republicans in the Michigan Legislature are cherry-picking courts to try to once again overturn a constitutionally guaranteed right because they can’t win with voters," LaRouche said.
Right to Life of Michigan President Barbara Listing announced the litigation Wednesday as several thousand anti-abortion activists protested on the state Capitol grounds in Lansing.
"The provisions asserted to be unconstitutional under federal law threaten legal protections for pregnant women seeking health care, the rights of physicians to care for patients, and the rights of parents already under attack on many fronts," Listing said in a statement. "At issue is also the sweeping disenfranchisement both of Michigan voters and of the authority of the Legislature in the days and years ahead."
In making arguments against the constitutional amendment, the lawsuit resurrects several claims regarding the effect of Proposal 3 that were argued at length during the 2022 campaign.
Opponents of the proposal argued it would provide unfettered and unregulated access to abortion, including the dissolution of Michigan's parental consent policy related to abortions involving minors. Proposal 3 supporters, including Attorney General Dana Nessel, argued last year those claims weren't accurate and were being used as scare tactics to dissuade voters. Many of those debated effects of the proposal have not yet been tested in court.
Asked about the new lawsuit Wednesday morning, state Sen. Mallory McMorrow, D-Royal Oak, jokingly responded, "good luck."
“You can’t just keep challenging things when you don’t get the response you want," McMorrow added.
The American Civil Liberties Union of Michigan, which was part of the Reproductive Freedom for All coalition that worked to pass Proposal 3, said it hopes the federal courts will "uphold the constitutional amendment as written and passed by Michigan voters."
"This lawsuit is an attempt to undermine the will of the voters and is a reminder why we must remain vigilant as those who are anti-abortion try to prevent all from accessing this critical, constitutionally protected health care," ACLU of Michigan Executive Director Loren Khogali said.
The Michigan Democratic Party noted on social media that voters had chosen to protect abortion rights.
"Now a group of Republican state legislators and their extremist allies are trying to overturn your vote. Sound familiar? Republicans have no respect for Michigan voters or our democracy," the party's official account on X said.
The lawsuit filed against the governor, attorney general and secretary of state was brought by groups including Right to Life of Michigan, the American Association of Pro-Life Obstetricians and Gynecologists, and the Crossroads Care Center. State Sen. Joe Bellino, R-Monroe, and Reps. Gina Johnsen, R-Lake Odessa, and Luke Meerman, R-Coopersville, also are listed as plaintiffs.
The groups are represented by lawyers with the conservative American Freedom Law Center, the Great Lakes Justice Center and the Thomas More Law Center.
In Wednesday’s lawsuit, the groups argued that the constitutional protection exempted women and unborn children from legal protections afforded to other classes in violation of the 14th Amendment, overrides religious objections related to providing reproductive services in violation of the First Amendment, and improperly nullifies the authority of the Legislature.
Meerman said one of the reasons he's participating in the lawsuit is because he believes Proposal 3 is violating his rights in the Legislature by "limiting legislators’ ability to write laws pertaining to abortion.”
“I do believe the voters spoke via the ballot amendment,” Meerman said. “But my argument would be that they weren’t told the complete truth of what the ballot initiative does, and it’s going farther than where Michigan is at."
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Republicans have previously argued in favor of having the states, not a federal court, decide how abortion should be regulated. In U.S. Supreme Court Justice Samuel Alito's majority opinion overturning Roe v. Wade last year, he referenced having the issue be decided by "voting."
"It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives," wrote Alito, an appointee of former President George W. Bush.
He quoted a past opinion that said: “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
"That is what the Constitution and the rule of law demand," Alito wrote.
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