Today, the American Freedom Law Center, on behalf of sixteen plaintiffs and along with co-counsel Great Lakes Justice Center, filed a federal civil rights lawsuit challenging Proposal 3, which has now become Article I, § 28 of the Michigan Constitution, on federal constitutional grounds.
Proposal 3 was passed a year ago (November 8, 2022) by a simple majority of the Michigan electorate.
The federal lawsuit was filed on behalf of Right to Life Michigan; American Association of Pro-life Obstetricians and Gynecologists, on behalf of itself, its members, and their patients; Gina Johnsen, Representative, Michigan House of Representatives; Luke Meerman, Representative, Michigan House of Representatives; Joseph Bellino, Jr., Senator, Michigan Senate; Melissa Halvorson, M.D.; Christian Medical and Dental Associations, on behalf of itself, its members, and their patients; Crossroads Care Center; Celina Asberg; Grace Fisher; Jane Roe, on behalf of preborn babies; Andrea Smith; John Hubbard; Lara Hubbard; Save the 1, on behalf of itself and its members; and Rebecca Kiessling.
As alleged in the Complaint:
The passage of Proposal 3 resulted in an amendment to the Michigan Constitution (Article I, § 28), which created a super-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. . . .
Federal courts have long recognized the propriety of a federal constitutional challenge to a statewide referendum passed by voters resulting in an amendment to a state constitution.
For example, in 1992, a Colorado state constitutional amendment was adopted via a statewide referendum. The proposal known as Amendment 2 (Colo. Const. art. II, § 30b) prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect homosexual persons.
In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court held that Amendment 2 violated the equal protection guarantee of the Fourteenth Amendment on rational basis grounds (there was no fundamental right nor suspect class implicated, unlike in this case). As stated by the Court, “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. The guaranty of equal protection of the laws is a pledge of the protection of equal laws.”  Romer, 517 U.S. at 633-34 (internal quotations and citations omitted).
Proposal 3 (Article I, § 28) fails for similar reasons, and others.
The lawsuit advances five claims under the U.S. Constitution. These claims are summarized below:
First, that Art. I, Sec. 28 (Proposal 3) causes great harm to pregnant women (and others) as a class by exempting them from the legal protections afforded to other classes of individuals in violation of the equal protection guarantee of the Fourteenth Amendment.
Second, that Art. I, Sec. 28 violates parental rights protected by the Fourteenth Amendment as it deprives parents of their right to direct the upbringing and education of their minor children by excluding them from their children’s decisions regarding “reproduction.”
Third, that Art. I, Sec. 28 violates the Free Exercise Clause of the First Amendment by overriding any objection on religious grounds to endorsing, providing, or supporting procedures involving “reproduction,” thereby infringing on the rights of conscience and religious exercise protected by the First Amendment.
Fourth, that Art. I, Sec. 28 deprives preborn babies, particularly those with disabilities, newborn babies following a failed abortion, and partially born babies of the right to life without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.
Fifth, that Art. I, Sec. 28 creates an unprecedented, super-right to “reproductive freedom” that remains immune from any legislative action, thereby nullifying the legitimate authority of a coordinate branch of government (the legislative branch) in violation of the Guarantee Clause of the U.S. Constitution, which guarantees private citizens the right to a republican form of government and thus protects them from the tyranny of the majority.
The lawsuit, which was filed in the U.S. District Court for the Western District of Michigan, seeks a declaration that Article I, Section 28 of the Michigan Constitution, which is the provision of the state constitution that was created by Proposal 3, violates the United States Constitution and a permanent injunction to prevent the implementation and enforcement of Section 28.