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Michigan Supreme Court: Abortion amendment must appear on ballot

Detroit Free Press logo Detroit Free Press 9/9/2022 Dave Boucher, Detroit Free Press
The Michigan Supreme Court ruled a state board must certify a proposed amendment that would explicitly enshrine the right to an abortion in the state Constitution. © Akash Pamarthy, Detroit Free Press The Michigan Supreme Court ruled a state board must certify a proposed amendment that would explicitly enshrine the right to an abortion in the state Constitution.

Tiny spaces and cries of gibberish are not enough to derail an effort to explicitly enshrine abortion rights in the Michigan Constitution, according to a ruling issued Thursday by the state's highest court.

The ruling, the court's first dealing at all with abortion since the U.S. Supreme Court reversed the national constitutional right to an abortion afforded under Roe v. Wade, means Michiganders will have the chance to amend the state Constitution when they cast their ballots this fall.

By a 5-2 decision, the Michigan Supreme Court ruled the Board of State Canvassers must certify a proposed constitutional amendment despite the alleged typographical issues. Chief Justice Bridget McCormack chastised board members and abortion rights opponents who suggested the space between words in a measure that garnered more than 750,000 signatures should be a fatal flaw.

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"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 because they believe that the decreased spacing makes the text no longer '[t]he full text.' That is, even though there is no dispute that every word appears and appears legibly and in the correct order, and there is no evidence that anyone was confused about the text, two members of the Board of State Canvassers with the power to do so would keep the petition from the voters for what they purport to be a technical violation of the statute," she wrote.

"They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. What a sad marker of the times."

Justices Richard Bernstein, Elizabeth Clement, Megan Cavanagh and Elizabeth Welch joined McCormack in the majority. All but Clement are Democratic-nominated. Republican-nominated Justices Brian Zahra and David Viviano voted against putting the measure on the ballot. 

Both Zahra and Viviano entertained the argument from anti-abortion rights advocates and the Republicans on the board, agreeing the seemingly small spaces between words made the proposed constitutional amendment illegible.

“As a wordsmith and a member of Michigan’s court of last resort, a court that routinely scrutinizes in great detail the words used in statutes and constitutional provisions, I find it an unremarkable proposition that spaces between words matter. Words separated by spaces cease being words or become new words when the spaces between them are removed,” Zahra wrote, while lamenting that the justices were unable to hear oral arguments on the issue. 

Zahra took exception to Bernstein's explanation of why he supported the majority opinion, suggesting it "ignores the requirements of our election law." Bernstein, a Democrat who is also blind, fired back in a pointed footnote to the opinion.

"Justice Zahra notes that, as a wordsmith and a member of this court, he finds it 'an unremarkable proposition that spaces between words matter.' As a blind person who is also a wordsmith and a member of this court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me," Bernstein wrote.

More:Michigan abortion rights advocates ask state Supreme Court to put amendment on ballot

More:Michigan elections panel deadlocks, leaving abortion rights proposal off ballot

The court needed to make its decision before Friday, when local clerks must finalize the candidates and issues appearing on the ballot. The General Election is Nov. 8, but absentee ballots go out to overseas and deployed voters on Sept. 24.

“We are energized and motivated now more than ever to restore the protections that were lost under Roe,” said Darci McConnell, communications director for the Reproductive Freedom for All (RFFA) campaign. “This affirms that more than 730,000 voters read, signed, and understood the petitions and that the frivolous claims from the opposition are simply designed to distract from our effort to keep the abortion rights we had under Roe for nearly 50 years.”

The decision comes one week after the board refused to certify the proposed amendment from a group called Reproductive Freedom For All, deadlocking 2-2 along party lines. The two Democratic members voted to put the measure to the people, but Republicans Tony Daunt and Richard Houskamp argued the grammatical inadequacies rendered the amendment meaningless.

“It falls to voters now to reject this mistake-ridden, extreme proposal on Election Day. We are confident that a majority will say No to Proposal 3," said Christen Pollo, a spokesperson for a coalition opposing the amendment called Citizens to Support MI Women and Children.

The question of abortion access is increasingly the determinative issue of this election cycle. After Roe's reversal, a 1931 state law criminalizing most abortions in theory became enforceable again. But on Wednesday, Court of Claims Judge Elizabeth Gleicher ruled that law is unconstitutional and therefore unenforceable. It marked a win for Planned Parenthood of Michigan, which filed a lawsuit before Roe was overturned seeking the exact ruling Gleicher issued.

"Enforcement of (the abortion ban) will endanger the health and lives of women seeking to exercise their constitutional right to abortion. Enforcement also threatens pregnant women with irreparable injury because without the availability of abortion services, women will be denied appropriate, safe and constitutionally protected medical care," Gleicher wrote in her opinion.

Abortion rights opponents are expected to appeal that ruling, but it's unlikely any final court decision could come before Election Day.

The state's highest court could take up a separate lawsuit, filed by Gov. Gretchen Whitmer, that also argues the ban is unconstitutional and that the state Constitution already protects the right to an abortion. But the Michigan Supreme Court has declined to formally accept the case for months, despite pleas from the governor.

Even if the Michigan Supreme Court took up either case and ruled in favor of Whitmer or Planned Parenthood, the proposed constitutional amendment would amount to a more-permanent right to abortion in Michigan.

More:In Michigan, all roads on abortion rights lead to the state Supreme Court

More:Michigan's abortion amendment: Here's what it will and won't do if approved

A slew of abortion rights supporters formally asked the court to put the proposed amendment on the ballot, including University of Michigan law professors, Michigan Secretary of State Jocelyn Benson and Michigan Attorney General Dana Nessel.

Nessel suggested the Republicans who refused to certify the petition for the ballot failed to deliver on their basic duties. In a news conference on Wednesday, she said by not putting the proposed amendment on the ballot the court would set "the most dangerous and ugliest precedent I could possibly imagine."

"It would really say that these two unelected members of the Republican Party could not just usurp the Legislature in terms of the powers that were provided to them, but really would thwart the will of hundreds and hundreds of thousands of people in the state of Michigan. And I can't think of anything more undemocratic than that," she said.

Her brief, written by assistant solicitor general Christopher Allen on Nessel's behalf, directly takes on the idea that the words are illegible due to spacing issues.

"Judges, like the people, are not automatons unable to interpret text. There are tools of statutory construction to decipher the meaning of the Constitution, no matter its text. ... People are easily capable of reading text with no spacing, let alone the text of the petition with its narrow spacing,"

"The people’s right to amend their Constitution cannot be discarded by a pair of unelected officials playing fast and loose with their statutory charge."

But a coalition opposed to abortion rights argued the spacing issues are but some of the many wording issues that should prevent the constitutional amendment from going before voters.

Citizens to Support MI Women and Children, advocating for Right to Life Michigan, the Michigan Catholic Conference and others, suggested that if the court allowed words separated by exceptionally small spaces into the Constitution, it would also need to allow incomprehensible arrangements of upside-down letters in future amendments.

"Because, after all, (state law) also says nothing about the 'full text' having to have its letters in their regular order, or running left-to-right, or right-side up. In RFFA’s house-of-mirrors world, any illegibility goes on the ballot for this Court to sort out later," the coalition's brief states.

"Since the nation’s founding it has been universally understood that a constitution comprises actual, comprehensible words."

A majority of Michiganders, and most people across the country, support some level of abortion access, according to polling accumulated for years before Roe's reversal and since the court's June decision. Democratic candidates in Michigan are campaigning extensively on the issue, promising to fight for abortion rights.

The inclusion of the abortion amendment on the ballot could have a substantial impact on other races this fall. While opponents of abortion rights will vote against the measure, polling and the level of support for the proposal demonstrated by the most signatures ever collected for such a ballot initiative likely bode well for turnout among abortion rights supporters.

Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Michigan Supreme Court: Abortion amendment must appear on ballot

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