The Washington PostDemocracy Dies in Darkness

An overlooked consequence of the Supreme Court’s gerrymandering rulings: Stricter abortion laws

The Trump White House wants to roll back Obama's birth control mandate and defund Planned Parenthood. But women’s health advocates are bracing for a fight. (Video: Luis Velarde/The Washington Post, Photo: Brian Monroe/The Washington Post)

For the next two months, petitioners will swarm Michigan ahead of late-December deadlines. They’ll knock on doors, flock to fairs and hand out pamphlets after church. Every day will be valuable, and every signature will get them a little bit closer to their goal: making it harder for women to get abortions in their home state.

If the volunteer fleet is successful, Michigan will join the list of states that have tightened restrictions on abortion rights this year. But, unlike those other states, which have overwhelmingly conservative governments, Michigan could pass antiabortion laws without the governor’s approval and without the support of a majority of voters.

If that happens, the legion of petitioners won’t be the only reason. Abortion rights advocates could also point the finger at a familiar specter: gerrymandering.

In Michigan, as elsewhere, the sparring over access to abortion spans local politics, the state judiciary and federal courts. On Monday, the U.S. Supreme Court gave Republicans a victory when it threw out a lower court’s ruling that the state’s political district maps were illegally gerrymandered — reaffirming the high court’s stance that federal judges have no power to stop partisan gerrymandering.

At the same time, Michigan’s recently elected Democratic governor has promised to veto antiabortion bills passed in the GOP-dominated House and Senate.

However, an obscure but long-standing provision in the state constitution gives the state’s citizens the chance to work hand-in-hand with the legislature to pass bills that are exempt from a governor’s veto or a popular vote.

That provision, known as the indirect initiative process, gives antiabortion groups a way to push for new bans on the procedure, and it puts ultimate power back in the hands of Republican lawmakers, who critics say are not representative of the state’s current, mostly Democratic electorate. Under the process, petitioners who collect a certain number of signatures from voters could force the passage of a law with a simple majority vote in the statehouse.

“It’s clever but it’s deeply undemocratic,” said Nicholas Stephanopoulos, the University of Chicago law professor who created the efficiency gap, a method for measuring partisan gerrymandering. “Through this loophole, they’re still able to pass laws as though the gubernatorial election never happened.”

Gerrymandering, in others words, can have an even more profound effect in Michigan.

What is gerrymandering and why is it problematic?

It’s happening elsewhere, too. The age-old practice of hyperpartisan redistricting, experts say, has led to more-extreme laws countrywide — none more visible this year than those dealing with abortion. In 2019, 12 largely conservative states have restricted access to abortions, while six liberal states have expanded or protected such access.

But to really grasp the impact that gerrymandering has had on abortion laws, you have to look back to 2010, said Dan Vicuña, the national redistricting manager at voting rights watchdog group Common Cause. That election year, Republicans set out to win control of as many statehouses as possible, which gave them power to redraw state and congressional districts after the census.

“That effort succeeded beyond their wildest dreams,” Vicuña said. “Republicans took over tons of state legislatures, and they were interested in gerrymandering.”

Since then, he said, it’s no surprise that the number of abortion bans passed at the state level has exploded.

From 1973 through 2010, states passed nine laws seeking to ban abortion outright or to prevent it after a certain point of pregnancy, according to data from the Guttmacher Institute, an abortion rights research and advocacy organization. But from 2011 to today, that number has nearly tripled. States have passed more abortion bans in 2019 alone than in the nearly 40 years before the 2010 election.

“They will take the power they have and use it,” said Michelle Kuppersmith, the director of the abortion rights advocacy group Equity Forward. “They’re good at this. … They have an advantage in the gerrymandered legislatures and they’re using it.”

Antiabortion ‘heartbeat’ bills are illegal. Why do Republicans keep passing them?

Of the dozen states to enact stricter abortion laws this year, at least half have districts that skew unfairly in Republicans’ favor, according to PlanScore, a nonpartisan mapping tool Stephanopoulos helped develop. PlanScore compares the numbers of Democrats and Republicans in the states and determines which states have legislatures that are unrepresentative of their electorates.

Of the six states to protect abortion rights, Vermont is the only one with a map that PlanScore says skews Democratic. Illinois, where Republicans have for years argued that districts are stacked against them, also passed protections for the procedure.

For Michigan, Stephanopoulos says his research shows Republicans have enjoyed a particularly profound advantage. Democrats consistently win the majority of the statewide vote but lose the legislature. He says it’s happened in every election since the state’s Republican governor approved the Republican-backed redistricting plan in 2011.

“Michigan is awful,” he said. “It’s one of the handful of the most gerrymandered legislatures in the country.”

It happened again in 2018, when Democratic candidates won 54 percent of votes statewide but still ended up as a minority in the Michigan House — making it the only state in the country with both an “anti-majoritarian” legislature and an indirect initiative law, an analysis from the Princeton Gerrymandering Project showed.

Now antiabortion groups are on the verge of resurrecting two bills that passed in the House and Senate but stalled when Gov. Gretchen Whitmer (D) threatened to veto them. If the groups’ dual petition drives are successful, those bills — bans on the dilation-and-evacuation procedure and on abortion after six weeks — would become law after legislators pass them with a simple majority.

The six-week ban, backed by the Michigan Heartbeat Coalition, is similar to others championed by conservatives in Ohio, Mississippi, Kentucky and elsewhere, and would ban the procedure before some women even know they’re pregnant. Courts have agreed that such bans are unconstitutional, and abortion rights advocates have called the effort a coordinated plot to overturn the 1973 Roe v. Wade decision that legalized abortions nationwide.

Representatives of the Heartbeat Coalition didn’t respond to an interview request, but on group’s website, its president said he hopes the bill will be “the arrow in the heart of Roe v. Wade.”

Right to Life of Michigan, a local affiliate of the antiabortion group National Right to Life, is behind the other petition — a ban on dilation-and-evacuation abortions, the most common procedure used during the second trimester of pregnancy. The organization’s strategists have been here before. They’ve used the indirect initiative process to enact into law four bills that ran afoul of a governor’s veto.

“We are the most successful organization in the state’s history of doing this,” said Genevieve Marnon, the legislative director at Right to Life of Michigan.

Since 1987, the group has used this method to pass a ban on the use of public funds to pay for the abortions of welfare recipients, a requirement that minors get parental consent before having abortions, new legal protections for fetuses and, in 2013, a requirement that women purchase extra insurance if they want abortion included in their health-care coverage.

Marnon rejected criticism that her group’s petition drives are undemocratic.

“The process is the same for everyone,” Marnon said. “All of a sudden they’re crying foul because Right to Life Michigan is doing something they don’t like.”

And if a gerrymandered legislature means lawmakers’ votes don’t count, she argued, then “are we just going to do away with every law that’s been passed?”

The indirect initiative process requires petitioners to gather the signatures of at least 8 percent of the number of people who voted in the most recent gubernatorial election — or, in this case, about 340,000 registered voters out of a population of roughly 10 million people. As of Sept. 30, Right to Life said it had gathered 200,000 signatures.

Once the initiative gets back to the statehouse, lawmakers have three options: They can reject it, which will send it to the ballot for a popular vote; they can propose an alternative, in which case both will go to the ballot and whichever receives more votes will become law; or they can pass it without amendments.

Marnon is confident that lawmakers, who have already supported the legislation, will do so again, bypassing Whitmer’s veto.

Marnon bristles at those who say Right to Life is circumventing the will of the majority of voters who elected Whitmer. Instead, she said, Whitmer’s promised veto would undermine the power of the legislators.

The widening gap in abortion laws in this country

Each side of the debate has staked its claim to the majority opinion. Marnon said people are more likely to oppose abortion if they first read a detailed description of the dilation-and-evacuation method, which antiabortion groups call “dismemberment abortions.”

However, abortion rights advocates argue that lawmakers and the thousands of petition-signing citizens represent a minority of the state’s population. And polling indicates that most of the state’s likely voters want abortion legal in most or all cases.

“What’s going on in Michigan is nothing more than tyranny by the minority,” Kuppersmith said. “A clear majority of Michiganders are pro-choice, and the minority is pulling out every stop to impose its fringe views on the state.”

Michigan’s constitution is, as lawyers say, “close to the people.” Its citizen-led indirect initiative process has also long allowed liberal groups to force their causes onto the ballot without the blessing of Republican-controlled legislatures. The difference, Democrats have said, is that when lawmakers reject the proposals, the majority of voters then have a chance to decide.

In 2018, Michiganders approved three initiatives this way. They legalized recreational use of marijuana and enacted voting policies, including same-day registration.

They also did something that could fundamentally reshape the architecture of the state legislature: Voters transferred the power to draw legislative and congressional boundaries from state lawmakers to an independent redistricting commission — a constitutional amendment that Michigan Republicans have since tried to block in court.

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Opinion | My district was gerrymandered. The damage is easy to measure.