A year ago, Michigan Democrats celebrated the same kind of victory Ohio notched this week. Michigan voters overwhelmingly passed Proposal 3, a ballot measure proponents said would "#RestoreRoe" by creating a "new individual right to reproductive freedom" in the state constitution.
But last week, Michigan Democrats failed to muster the votes needed from their own members to remove two key restrictions on abortion in that state — despite Democrats having control of the state House, Senate, and governorship for the first time in decades.
Democrats in the Michigan legislature introduced the Reproductive Health Act earlier this year, billing it as a way to put the lofty promises of Proposal 3 into practice.The legislation would have allowed state Medicaid dollars to be used for abortion care. And the RHA would have removed a 24-hour mandatory waiting period that requires abortion patients in Michigan to find, sign and print an online consent form. It's a process that, health care professionals say, regularly results in patients regularly being turned away from their own appointments.
"Keeping the Medicaid ban in place and keeping the 24-hour delay in place...disproportionately impacts people of the lowest means, people who have the least ability to return to clinic, who have the least ability to pay out of pocket for their health care," said Dr. Halley Crissman, an OB/GYN in Ann Arbor who testified in favor of the RHA on behalf of the American College of Obstetricians and Gynecologists.
But after the dust of a late-night voting marathon settled in the Michigan House last week neither measure passed. The Medicaid ban and the 24-hour waiting period still stand.
Instead, Michigan Democrats passed "a watered-down version of the Reproductive Health Act that lacks key policy reforms that are both desperately needed and widely supported by voters across the state," according to a joint statement from Planned Parenthood of Michigan and the ACLU of Michigan.
"Saying it's a mix of emotions is really underselling it," said Democratic State Representative and Speaker Pro Tempore Laurie Pohutsky, one of the key sponsors of the legislation.
On the one hand, she says, Democrats did manage to repeal some of the state's remaining abortion restrictions: They passed legislation that would allow private health insurance to cover abortion and removed onerous regulatory restrictions on clinics that provide abortion.
"I don't think that we should sell ourselves short," Pohutsky says. "This is huge. Even just the repeal of those policies is going to be really, really impactful. That being said, all of that is frankly irrelevant for somebody who still can't access abortion care because of that 24-hour delay."
Democrats lose support from their own
The first cracks in the Democrats' plan emerged in September, when Democratic State Representative Karen Whitsett (Detroit/Dearborn) voted against the Reproductive Health Act in committee.
"I'm questioning: Do we need to pay for Medicaid-funded abortions?" Whitsett told NPR in September. "That was not the conversation during Prop 3. That was not what people agreed to. That was never, ever part of the conversation."
The Hyde Amendment, a federal law that passed in 1976,prohibits federal dollars from being used for abortion, except in cases of rape, incest or when a mother's life is threatened. Seventeen states, though, allow their Medicaid programs to cover abortions using state funds.
Michigan Democrats' majority on the Health Policy committee was large enough to get the Reproductive Health Act through committee without Whitsett's support. But the House itself was another question. With a razor-thin majority, Democrats couldn't afford to lose a single vote.
Then, in October, Democrats in the Senate dropped Medicaid coverage for abortions from their version of the legislation. That was after an unknown number of Democrats had also been privately voicing their own concerns about Medicaid funding for abortion, Pohutsky said.
"There were, unfortunately, House members as well that had issues with Medicaid funding," Pohutsky said at the time. "And again, I understand that that is disappointing. There's no denying that. But I don't think it's fair to characterize this as one member who had an issue."
Pohutsky said there was a lot of outreach both to constituents and her fellow legislators to educate them on the proposed changes. "But ultimately, we weren't able to get everyone on board."
Legislation called too "extreme" even for Prop 3 supporters
After the passage of Proposal 3, groups like Right to Life of Michigan had to go back to the drawing board.
"When you've got 57% of Michigan voters voting for something like Prop 3, we need to change the culture," says Right to Life of Michigan legislative director Genevieve Marnon, who helped lead the campaign against the Reproductive Health Act. "To really look at: what is abortion? And how do we prevent abortion?"
One strategy seems to have proven at least partly effective: separating abortion rights, which voters support, from "commonsense" abortion restrictions.
Her organization worked with the Michigan Coalition to Protect a Woman's Right to Know, a group of more than 10 statewide organizations that oppose abortion rights..
They publicized polling results they say showed that even voters who supported Proposal 3, also supported some abortion restrictions. (Abortion advocates say the language used in that polling, however, distorted what the Reproductive Health Act would actually do.)
Marnon thinks that may have persuaded some Democrats.
"Even the people who support abortion, don't want to pay for another person's abortion with their tax dollars through Medicaid," she says. "Same with informed consent, including the 24-hour waiting period. It had huge support from voters, including voters who support abortion and supported Prop 3."
What's next in the fight to define abortion rights
Democratic leaders were initially optimistic that they'd found a compromise: let go of Medicaid funding for abortion, but pass the rest of the legislation, including removing the 24-hour mandatory waiting period.
But just hours before the House was scheduled to vote, Whitsett said she would only support the legislation if the 24-hour wait remained in place.
"Those are some very key things that I heard from constituents within the community," Whitsett says. "Don't get me wrong. I voted for Prop 3. I am a rape survivor. I had a termination. So I am in support of abortions and making sure that they're safe and accessible."
For weeks, Whitsett has been the target of a public pressure campaign from progressive groups like Planned Parenthood of Michigan and the ACLU of Michigan, which warned this week that Whitsett's "actions will perpetuate the harm being done to her constituents and communities across the state and are a direct affront to the change voters demanded when they passed Proposal 3, including by a margin of 71.2 to 28.8 in Wayne County which encompasses Whitsett's district."
"You know, it's part of the job," Whitsett says of the critiques.
Just before midnight, Democrats emerged with part of the Reproductive Health Act intact: a measure removing a requirement that clinics performing 120 or more procedural abortion be licensed as surgery centers passed. So did a bill allowing private health insurance to cover abortion care in their regular plans, meaning policy holders would no longer have to purchase an additional, elective abortion rider. (Democrats had long-criticized that provision as requiring women to purchase their own "rape insurance.")
But some abortion providers, like Dr. Halley Crissman, said in effect the legislature had created two different tiers of abortion access: one for patients with private insurance, and another for those on Medicaid.
"Basically, the House said to us last night, that if you are privileged enough to have private health insurance, your private health insurance can cover your health care or your abortion care," Crissman said Thursday. "And if you are a lower-income person, or someone on Medicaid working to make ends meet, then your health care doesn't matter as much...and you don't have that meaningful access. And so that's really disappointing."
House Speaker Pro Tempore Laurie Pohutsky said she hopes abortion advocates outside the legislature will take up the fight next, by challenging the remaining abortion restrictions in court.
That's something Planned Parenthood of Michigan may consider, says spokesperson Ashlea Phenicie. "Planned Parenthood believes that these restrictions are unconstitutional and is exploring every tool in our toolbox to remove those barriers to care"
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