A state law that foregoes a vote if a proposal has signatures from just 4% of the electorate is being used by special interest groups

Michigan is a state in which Democrats drubbed Republicans in the 2018 midterms, a Democrat governor has promised to veto anti-abortion legislation, and polling shows the population is solidly supportive of reproductive rights.

Still, it could soon effectively ban abortion.

Conservative activists here with Right To Life and the Michigan Heartbeat Coalition are planning to team up with Republican lawmakers to exploit a constitutional loophole that allows groups to use citizen ballot initiatives to dodge a governor’s veto and implement anti-abortion laws without putting them to voters.

Michigan law permits activist groups to participate in legislating or amending the state’s constitution via ballot drives that let citizens vote on proposed laws. However, there is a loophole that allows the state legislature to make such citizen-initiated proposals straight into law before they are actually put to voters. If a proposal gets enough signatures to qualify for the ballot, the state legislature can simply approve it – foregoing a public vote and also making the law immune to a veto from the governor.

Legal experts say the loophole exists to avoid the cost and resources required to put such proposals to a popular vote. But rightwing special interest groups are increasingly using it to push through unpopular laws without the support of the majority of the electorate or the governor.

Now anti-abortion groups the Heartbeat Coalition and Right To Life are respectively planning initiatives that would ban abortions after six weeks and outlaw dilation and evacuation, which is the most common procedure for second trimester abortions. If they collect enough signatures, they will probably succeed in pushing through the laws, even though the overwhelming majority of Michigan voters and the governor will have no say in the matter.

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The anti-abortion groups are able to attempt their plan because Republicans control the state’s legislature as Michigan’s legislative districts are among the nation’s most gerrymandered. Though Michigan Democrats won far more votes than Republicans in 2018, Republicans still hold solid majorities in the state house and senate.

The anti-abortion groups thus each need to collect about 340,000 signatures – or about 4% of the electorate – to get the laws enacted by the Republican-controlled legislature. Opponents say the whole process is “undemocratic” and amounts to “minority rule”.

The moves come as anti-abortion activists and Republicans seek to take advantage of the supreme court’s new conservative majority to challenge the landmark 1973 Roe v Wade decision that guaranteed abortion rights for women nationwide. If they pass, Michigan could join nine other states that have this year passed laws severely restricting or effectively banning abortions.

But Michigan’s unique loophole means that would happen even though Pew found in 2014 that 54% of residents think abortion should be legal in all or most cases. A June poll also found that 58% of voters oppose banning the dilation and evacuation procedure that Right To Life is targeting.

“Public opinion overwhelmingly shows that these [proposals] are not popular positions,” said Merissa Kovachs, policy strategist with the ACLU of Michigan. “Public opinion overwhelmingly shows that people want to preserve Roe v Wade, and that women have a constitutional right to an abortion.”

Local Democrats are outraged.

“There’s a growing consensus that the system we have is broken. A lot of people don’t feel like they’re appropriately represented,” the state senator Mallory McMorrow said. “I think we have to keep in mind that the governor won by 10 percentage points, and this could get through with 4% of the population dictating laws counter to what the majority of residents are asking for.”

Heartbeat Coalition spokesman Mark Gurley seemed to confirm that objective in a recent interview with Michigan Public Radio. He said the group planned to “skip that part”, in reference to putting the proposal before voters. “We don’t need to make this a circus and a parade,” he added.

Right To Life is not new to this type of work. It’s well-funded and organized, uses its alliances with the state’s Catholic churches to efficiently collect signatures, and four times in recent decades has pushed through restrictive anti-abortion measures that Democrat and Republican governors vetoed.

That includes banning public funds from being used to pay for abortions for welfare recipients in 1987. In 1990 it pushed through an initiative requiring parental consent before a minor can get an abortion, while in 2004 and 2013, respectively, it pushed through initiatives defining a legal birth and requiring women to purchase a health insurance rider if they want to have coverage for an abortion.

The latter, dubbed “rape insurance”, polled between 36% and 41%, but Right To Life and the GOP successfully made it law with signatures from just 4% of voters. It remains law today.

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“They have no intention of putting these proposals before voters,” said Angela Vasquez-Giroux, director of communications for Planned Parenthood Advocacy of Michigan. “It’s really an abuse of the democratic process.”

Right To Life sees its work differently. Genevieve Marnon, the group’s legislative director, bristled at the suggestion that Right To Life’s actions were “undemocratic”.

“You better go to back to our founders on that one,” she said, adding that “a majority of voters” put a pro-life legislature in place in the state, though Republicans in the Michigan senate and house did not get a majority of the popular vote.

With the proposals likely to pass, the ACLU’s Kovachs says litigation is on the table.

“The six-week ban is just patently unconstitutional, women have a right to abortion before viability, and it’s so extreme that it just flies in the face of Roe v Wade,” she said, adding that the ACLU successfully blocked multiple other GOP attempts to ban dilation and evacuation bans.

Perhaps the best option is for reproductive rights activists is to wield the citizen ballot initiative for its intended purpose – to put the matter in front of voters.

State senator Jeff Irwin said a countermeasure is possible, and he supports the idea of “putting something on the ballot that sorts out this issue once and for all.”

And though Right To Life may have previously passed restrictive legislation with little consequence, 2019 politics are a very different game. “People are paying attention to this,” McMorrow said.

“I think people have their finger on the pulse of what’s happening and if they’re trying to sneak things through, then they have to be aware that there’s going to be a political backlash,” she said, noting the 2018 state election in which Democrat women swept statewide office and made legislature gains despite severely gerrymandered districts.

“This will galvanize women,” she said.