Michigan abortion foes can call procedure ‘dismemberment’ on ballot petitions

• June 2020: Michigan Right to Life abortion ban may fall short on signatures

Anti-abortion advocates seeking to limit a common second-trimester abortion procedure in Michigan will be able to describe the procedure as “dismemberment abortion” as they gather signatures from the public for a 2020 ballot measure.

State canvassers on Wednesday approved a petition form for Michigan Values Life, a ballot committee backed by Right to Life of Michigan. The 100-word summary allowed for use on ballot petitions makes three references to “dismemberment abortion” to describe a procedure known in medical terms as “dilation and evacuation,” or D&E. The surgical process involves dilating the cervix and then removing the fetus with forceps.

Genevieve Marnon, legislative director for Right to Life of Michigan, supports using the word “dismemberment,” saying the dictionary definition “really does mean to remove limbs, arms and legs. It is common, everyday language that everyone understands.”

Under the ballot committee’s proposal, “dismemberment abortion” would be defined as an abortion in which the provider “deliberately and intentionally uses any instrument, device or object to dismember a living fetus by disarticulating limbs or decapitating the head from the fetal torso and removing the dismembered fetal body parts from the uterus.”

But opponents of the summary language, from physicians to Planned Parenthood, say the label “dismemberment abortion” is inflammatory and medically inaccurate — and state canvassers shouldn’t have allowed it to appear on ballot petitions circulated to voters.

“That’s a term that has been made up or fabricated by folks who are anti-choice, or anti-abortion, in order to try to invoke graphic images and stir emotions and cause people to vote or sign a proposal in a reactionary way,” Dr. Halley Crissman, an obstetrician and gynecologist who spoke on behalf of the Michigan Section of the American College of Obstetricians and Gynecologists at Wednesday’s meeting, told Bridge in an interview.

“We think that the term ‘dilation and evacuation’ accurately describes what the procedure actually is — the dilation of the cervix and the evacuation of the contents of the uterus — and it would be more neutral and less biased if the proposal used that language,” Crissman said.

The Board of State Canvassers, a four-member body split evenly between Republicans and Democrats, is tasked with certifying statewide ballot proposals. The board can approve a ballot committee’s petition formatting, an optional step; that approval does not include a review of the proposed statutory language, according to instructions for petition gatherers.

The board also approves the 100-word summary for initiatives, which is to include “a true and impartial statement in language that does not create prejudice for or against the proposal,” according to guidelines.

The board on Wednesday unanimously adopted a summary prepared by the state Bureau of Elections that included the term “dismemberment abortion,” accepting the argument that the phrase is accurate because the statute itself defines “dismemberment abortion.”

The two Democratic members, however, said they voted to adopt the summary reluctantly, out of concern that it isn’t a medically accepted term.

Regardless of whether canvassers agree with the proposed policy, “everyone has a right to petition their government, and we have a right in this state of initiation of legislation,” board Chairwoman Jeannette Bradshaw, a Democrat, said during Wednesday’s meeting. “We have a defined term here.”

Even so, the decision to allow “dismemberment abortion” onto the committee’s petitions didn’t sit well with opponents of the policy, who say they think it will mislead voters.

“It’s unclear to physicians what exactly it is that they’ll be criminalized for, since that’s not a medical term,” Amanda West, government relations director for Planned Parenthood Advocates of Michigan, told Bridge. “By misrepresenting that on the petition, women aren’t getting the information that they deserve. The voters aren’t getting the information that they deserve.”

Wednesday’s approval of the summary does not necessarily mean that language would appear on the statewide ballot presented to voters, should the proposal gather enough signatures to advance.

Attorney General Dana Nessel, a Democrat, wrote in a legal opinion in May that the approval of summary language in ballot petitions does not preclude that language from being changed if the initiative qualifies for the ballot. “Rather,” she wrote, “the Director of Elections and the Board (of State Canvassers) remain authorized to draft and approve ballot language that differs from the petition summary.”

The Attorney General’s interpretation of state law is considered binding on state agencies, including the Secretary of State, which oversees elections.

In a second initiative to restrict abortions in Michigan, a proposal from committee Michigan Heartbeat Coalition would ban abortions once cardiac activity is detected in a fetus.

If the two abortion measures are eventually approved for the 2020 ballot, they can be preemptively adopted by a receptive and Republican-led Legislature, making it impossible for Democratic, pro-choice Gov. Gretchen Whitmer to issue a veto.   

The two abortion-related committees are the first in the 2020 election cycle to have their petition forms approved by the four-member Board of State Canvassers, an optional step that clears the way for committees to begin gathering the necessary 340,047 signatures from registered Michigan voters within 180 days.

Michigan’s constitution allows citizens to propose legislation. If ballot committees collect enough signatures, their proposals first go to the Legislature, which can choose to adopt them. If lawmakers don’t pass them, the citizen measures would be placed on the November 2020 statewide ballot.

Committees will need to gather thousands more signatures for 2020 than they did for 2018, due to higher turnout in last year’s gubernatorial election.

It’s still uncertain whether a law passed in December’s lame-duck legislative session that would make state ballot drives more challenging to complete can be enforced. In that same opinion in May, Nessel found parts of Public Act 608 of 2018 unconstitutional, including a provision that would limit groups to collecting no more than 15 percent of their signatures from any one of Michigan’s 14 congressional districts.

Republican lawmakers filed suit this month in the Michigan Court of Claims to challenge Nessel’s opinion in court. The outcome could affect ballot committees planning to circulate petitions for November 2020.

Here’s a roundup of the ballot proposals, and what their next steps will be.

Michigan Values Life

What is it? A proposed legislative change to ban a common second-trimester abortion procedure known as dilation and evacuation, or D&E. The surgical procedure requires the cervix to be dilated; the fetus is then removed using forceps.

Dilation and evacuation was used in fewer than 10 percent of all abortions in Michigan in 2017, according to the nonpartisan House Fiscal Agency, citing Michigan Department of Health and Human Services data. Yet D&E was used in about half of second-trimester abortions, between 13 and 24 weeks gestation, and more than 78 percent of abortions between 17 and 24 weeks.

Proponents of the citizen initiative call the procedure “dismemberment abortion,” and that phrase will be included on the ballot petition that circulators show registered voters as they collect signatures.

The law would make it a felony for a medical provider to perform the dilation and evacuation procedure, with penalties of up to two years in prison or a $50,000 fine, or both. An exception would be granted if the mother’s life is in danger, though not for rape or incest. The woman seeking the abortion procedure would not be subject to criminal charges.

The ballot initiative also would allow the full Legislature, either the House or the Senate or an individual lawmaker, to intervene in court if the law is adopted and is challenged as unconstitutional. Right to Life of Michigan said this provision was added because Nessel, the Democratic attorney general, has already declared she would not defend a Michigan law that restricts a woman’s right to abortion. The Michigan House and Senate, by contrast, are led by Republicans.

Who’s behind it? Right to Life of Michigan, an anti-abortion advocacy group, formed the Michigan Values Life ballot committee shortly after the GOP-led House and Senate adopted bills to ban the procedure and Whitmer promised to veto them.

How much money has it raised? The committee has not yet had to report its finances under state campaign finance laws.

What’s the status? The Board of State Canvassers on Wednesday approved a proposed 100-word summary and the committee’s petition form, an optional process that clears the way for Michigan Values Life to begin circulating petitions.

The Legislature has not yet moved its bills to Whitmer’s desk. Marnon, legislative director for Right to Life of Michigan, told reporters the group does not plan to wait for Whitmer’s veto, but will start gathering signatures with volunteer circulators to take advantage of warmer summer weather when people are more likely to be outdoors.

What’s the opposition say? Opponents say it would make second-trimester abortions more dangerous and restrict women's rights to abortion. They also point to the fact that the proposal does not include exceptions for cases of rape or incest.

On Wednesday, critics of the language said the phrase “dismemberment abortion” is not a medical term, and the full procedural name “dilation and evacuation” should instead be used on petitions seeking signatures to put the measure on the ballot.

Planned Parenthood Advocates of Michigan, the advocacy division of Planned Parenthood of Michigan, has formed its own ballot committee, Coalition to Protect Access to Care, to oppose the initiative.

“We want to make sure that people have a good understanding of exactly what it is that’s being implemented,” said West, of Planned Parenthood Advocates of Michigan. “We have deep concerns that folks aren’t really understanding that we’re criminalizing physicians for providing the best care for women.”

How to learn more? Visit the committee’s website, read the petition and the 100-word summary. Visit Planned Parenthood Advocates of Michigan’s website.

Michigan Heartbeat Coalition

What is it? A proposed legislative change to ban abortion in Michigan after a so-called fetal heartbeat is detected. At least nine states this year have passed some new abortion restrictions, most of which limit the procedure at six to eight weeks gestation.

Under the proposal, anyone who performs an abortion after a fetal heartbeat is detected would be guilty of a felony, with penalties of up to four years in prison; the sentence would increase to up to 15 years in prison if the woman dies during the procedure. The woman seeking the abortion would not face criminal charges.

Exceptions exist for when a woman’s life is at risk, but not for rape or incest.

Medical professionals say that while a heartbeat can be detected via ultrasound at six weeks gestation, the heart is not yet fully formed and the pregnancy is still in an embryonic, rather than fetal, stage.

Dr. Halley Crissman, representing the American College of Obstetricians and Gynecologists, testified before canvassers Wednesday that the heartbeat that can be heard is electrical activity, and that the embryo is not viable outside the uterus.

“A pregnancy prior to (eight) weeks’ gestation is an embryo, not a fetus,” the Michigan Section of the American College of Obstetricians and Gynecologists wrote in recent public comments to the canvassers’ board. “Moreover, the cardiac activity visualized on ultrasound at this gestational age is representative of electric activity and not what laypersons, including the Michigan electorate relying on the government for factual information, would consider a heartbeat. Conflating the two, as in section 2 part d, is misleading and inaccurate."

Proponents say the ballot measure is intended to serve as a potential challenge to Roe v. Wade, the 1973 U.S. Supreme Court decision that made it legal to have an abortion.

In the event that Roe is not fully overturned, but instead restricts abortions after a certain period, such as when a heartbeat is detected, the group’s proposal “positions Michigan to be in alignment for a ruling like that,” said Corey Shankleton, a former pastor and the Michigan Heartbeat Coalition president.

He told Bridge the ballot committee will leave the debate over the number of weeks gestation at which a fetal heartbeat can be determined to medical providers and the courts.

“Heartbeat is used as the standard medical determination of life in every other situation,” Shankleton said, “so it only makes sense that it would be applied to the unborn.”

Who’s behind it? The Michigan Heartbeat Coalition is led by Shankleton. Its website lists additional supporters.

How much money has it raised? The committee has not yet had to report its finances under state campaign finance laws.

What’s the status? The Board of State Canvassers on Wednesday approved a proposed 100-word summary and the petition form, an optional process that clears the way for the committee to begin circulating petitions.

Shankleton told Bridge the group could launch its volunteer-run effort as soon as this week.

What’s the opposition say? Opponents of the measure, including the American College of Obstetricians and Gynecologists and Planned Parenthood Advocates of Michigan, say the ban would restrict abortion at a stage in fetal development before many women even know they’re pregnant.

“Abortion bans like these are deeply unpopular,” said West, of Planned Parenthood. “We are seeing not only in Michigan but across the nation, people don’t want access to abortion taken away in the ways that are happening today. And so we are taking all that information and we’ll figure out how we move forward.”

West said it has not yet been decided whether Planned Parenthood would launch its own counterproposal.

Right to Life of Michigan, which is not working on the Heartbeat Coalition initiative, said voters could be confused by two abortion-related proposals this year.

And, Marnon said, Michigan already bans abortion, a law she said would be enforceable should the Supreme Court overturn Roe v. Wade.

How to learn more? Visit the committee’s website, read the petition and the 100-word summary. Visit Planned Parenthood Advocates of Michigan’s website.

Only Citizens Vote

A third ballot committee, Only Citizens Vote, was scheduled to have its petition form considered at Wednesday’s canvassers meeting, but withdrew it from the agenda, saying more time was needed to fix a technical issue. It is expected to appear before state canvassers later, according to the Secretary of State’s office.

Only Citizens Vote is proposing a constitutional amendment to prohibit people who are not U.S. citizens from voting in Michigan.

The committee’s proposal would amend two sections of the Michigan constitution to specifically require that “only citizens of the United States of America shall be eligible to vote in an election” for state or local public offices, ballot questions, Congress, the president and vice president.

The state constitution currently includes language that specifies U.S. citizens are eligible to vote, provided they meet residency and age requirements.

Scott Tillman, a resident of the Grand Rapids suburb of Kentwood who is leading the initiative, said the phrasing distinction between allowing all citizens to vote and preventing non-citizens from voting is important. Tillman is national field director for U.S. Term Limits, a group that advocates for term limits for elected officeholders in state and federal government.

He said some communities across the country have extended voting rights to non-citizens, citing California as an example.

San Francisco last year said the city would allow non-citizens to vote only in a local school board election. Also last fall, California acknowledged that close to 1,500 people, including some non-citizens who are living in the U.S. legally, may have been improperly registered to vote in the state. FactCheck.org, a project of the Annenberg Public Policy Center at the University of Pennsylvania, found that California is not intentionally registering non-citizens to vote.

Only Citizens Vote’s initiative also would remove outdated wording in the state constitution that requires voters to be at least 21 years old to cast a ballot. The 26th Amendment to the U.S. Constitution lowered the national voting age to 18 in 1971.

The committee was granted a waiver from state campaign finance reporting requirements, meaning it does not intend to raise or spend more than $1,000. Tillman told Bridge that could change in the future.

Proposed constitutional amendments bypass legislative approval and go straight to voters in a statewide election; the next is November 2020. Tillman’s committee will need to obtain 425,059 valid voter signatures to qualify for the ballot, up from more than 315,000 in 2018.