Opinion: These GOP justices don't want to hear what Michigan voters think about abortion

Republicans spent 50 years arguing that the fate of abortion should be up to Michigan voters.

Now they've decided that would be a terrible idea — especially in this critical election year.

But it's a little late to defuse the time bomb that began ticking more than two months ago, when conservative U.S. Supreme Court justices tossed the abortion question back to individual states. And unless pollsters are wrong, hundreds of thousands of Michigan voters are poised not only to restore the abortion rights the Roberts Court eviscerated, but to enhance them, sweeping away the restrictions and regulations Michigan's Republican legislators spent three decades erecting.

How could this happen? How has the reversal of Roe v. Wade — the prize abortion opponents began pursuing when Richard Nixon was president — turned into the GOP's biggest nightmare?

Don't blame Michigan Supreme Court Justices Brian Zahra or David Viviano, who did everything they could to derail the abortion referendum Michigan voters are palpably eager to have.

More than 750,000 Michigan voters have signed petitions supporting the adoption of a state constitutional amendment that would bar most legislative kibitzing on abortion, contraception and other matters involving a woman's reproductive health. But if Zahra and Viviano had gotten their way, no such amendment would appear on Michigan's general election ballot this November.

Sabotaging a November referendum on abortion was also the goal of two Republican members of the state Board of Canvassers, who refused to certify the proposed constitutional amendment last week after abortion opponents argued that spacing errors in the petitions made it impossible for voters to know what they were signing.

If you are among the record number of voters who signed petitions in support of such a showdown, you may recall that the document to which you added your John Hancock included a 100-word summary in large type followed by a longer, full-text version of the language that would be added to the state constitution if voters approve it in November. Michigan law prescribes the size of type in which each section must be printed, a requirement the proposed amendment's sponsors were careful to meet.

No one has argued that the large-print summary that appeared at the top of each petition was inaccurate or deceptive. The sole objection raised by abortion opponents who challenged the petition's legitimacy was that the 339 words of the proposed amendment itself, which appear in somewhat smaller print following the 100-word summary, were spaced so closely together as to violate the statutory requirement that each petition must include the full text of the proposal.

But in a 5-2 decision that restored the abortion rights amendment to the November ballot, a bipartisan majority of state Supreme Court justices recognized the challengers' objections for what they were — a desperate Hail Mary designed to block the abortion showdown Republicans worry will jeopardize their longtime hammerlock on Michigan's legislative branch.

"Regardless of the existence or extent of the spacing, all of the words remain and they remain in in same order," the majority wrote. "...The meaning of the words has not changed by the alleged insufficient spacing between them."

In a testy concurrence, Chief Justice Bridget McCormack noted that lawyers who challenged the petition had failed to produce even "a single signer who claims to have been confused by the limited-spacing sections."

Canyoureadthis?

But in their separate dissents, Zahra and Viviano insisted that the spacing issue was sufficient grounds for Republican canvassers to reject the amendment.

"Words separated by spaces cease being words or become new words when the spaces between them are removed," Zahra observed ominously.

Viviano, whose dissent to the majority's three-paragraph order consumed 15 pages, warned of a lawless dystopian future in which the spacing between letters had become "irrelevant" and "all the letters of an amendment could be placed on top of each other, in the space for a single character." (Now that would be confusing, eh, citizens?)

Viviano also took issue with McCormack's assertion that voters who signed the abortion rights petition had little difficulty recognizing the words of the amendment, notwithstanding the occasionally cramped spacing between them. Citing an academic he described as "the leading scholar on this topic," Viviano observed that "in Western scripts, spacial organization is a determinative element in the effect of different transcription systems on the cognitive processes required for lexical access and hence on the propensity to read orally or silently."

I like to think Viviano was poking fun at himself when he observed, a bit later in his epic dissent, that "the language of the law can be hard enough to parse even when it is perfectly reproduced."

Playing to the crowd

Zahra, who is seeking re-election to a second eight-year term in November, and Viviano, who faces re-election in 2024, want you to believe their reluctance to put an abortion amendment rights before voters has nothing to do with their own policy preferences. Both justices insist their only concern is with the defects of this particular proposal, and the dangerous precedent their court might set by overlooking them.

That's nonsense, of course. Both justices were nominated by Republican Party convention delegates determined to criminalize abortion, and both have been endorsed repeatedly by Michigan Right to Life, the state's most effective (and unforgiving) anti-abortion lobby. The dissents Zahra and Viviano filed this week are properly understood as performative displays designed to reassure abortion opponents how committed the two Republican justices are to their cause, even if it means sabotaging a referendum Michigan voters are clearly itching to have.

Zahra argued that his objection to this year's abortion rights amendment is consistent with the one he raised in 2012, when he joined a minority of Republican justices in an abortive attempt to dispatch an initiative seeking to repeal the state's emergency manager law. Ever the stickler for detail, Zahra maintained that the initiative's sponsors had circulated petitions printed in a type size slightly smaller than the one prescribed by the state. But that initiative, like this year's abortion rights amendment, was one Republicans hoped to keep off the ballot.

Zahra cited similar technical shortcomings in 2018, when he and two now-departed Republican justices tried to derail two other ballot initiatives the state GOP opposed: Proposal 2, which sought to put the redistricting process in the hands of an independent citizens commission, and Proposal 3, which streamlined voter registration and made it easier to cast an absentee ballot. Both measures survived GOP legal challenges and went on to win the support of general elections voters.

Unconfused and undeterred

As of this writing, it seems likely the abortion rights amendment the state Supreme Court resurrected this week will receive a similarly warm reception. There's simply no evidence the three-quarters of a million Michigan voters who endorsed the initiative were even a little bit confused about its intent.

A coalition of abortion rights advocates led by Planned Parenthood of Michigan began soliciting support for the amendment last spring, months before the Supreme Court announced its blockbuster decision in Dobbs v. Jackson. But petitioners gathered most of the signatures after May 3, when a draft opinion revealing the conservative majority's intent to overturn Roe v. Wade was leaked to the press.

If some Michigan women remained in denial about the imminent threat to their autonomy, the leak of the Dobbs decision made it clear how dramatically their legal status was about to change. Democrats warned that the demise of Roe would revive a 91-year-old Michigan law that made almost any abortion a felony. While many prosecutors signaled their unwillingness to enforce such a ban, Republican prosecutors in western Michigan made clear they were ready to begin charging physicians the moment Roe v. Wade was history.

Abortion opponents have ample reason to fear the backlash that has been gathering ever since. So do the Republican state Supreme Court justices who tried and failed to keep the abortion question out of voters' hands.

Brian Dickerson is the Free Press' Editorial Page Editor. Email him at bdickerson@freepress.com.

This article originally appeared on Detroit Free Press: Opinion: GOP justices don't want to hear your thoughts about abortion