Michigan voters pass Prop 3 Reproductive Freedom for all

 An irony of the Dobbs decision - abandoning the Roe v. Wade and Casey v. Planned Parenthood protections and limitations on the right to elect abortion is that the national right was abolished but states left free to adopt fundamentally conflicting measures.  Criminalization and guarantee of the right of elective abortion are both matters left to the states by Justice Samuel Alito's opinion for a court divided 5-1-3.  "One nation, under God, with liberty and justice for all" is in certain respects no longer applicable.

This is one of the consequences of the fragmentation produced by our adherence to the doctrines of enumerated powers and state sovereignty.  States may criminalize not only surgical but medical abortion, potentially subjecting women, physicians, and pharmacists to punishment for conduct legal where the medicine is manufactured, sold, or shipped - but harshly punishable where received and administered.

A coherent healthcare policy would be unencumbered by the enumerated powers doctrine, which forces national measures to be justified as governance of interstate commerce. Professors David S. Cohen, Greer Donley, and Rachel Rebouche examine the possibilities in a forthcoming article in the Columbia Law Review The New Abortion Battleground.

One option is the popular referendum.

- GWC November 9, 2022

Michigan Proposal 3 

Yes		2,476,868	56.65%
No		1,895,338	43.35%

Article 1, Section 28 Right to Reproductive Freedom (1) Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care. An individual's right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means. Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual. (2) The state shall not discriminate in the protection or enforcement of this fundamental right. (3) The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent. (4) For the purposes of this section: A state interest is "compelling" only if it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual's autonomous decision-making. "Fetal viability" means: the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures. (5) This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of this section.[12]