Abortion Bans

NEAR-TOTAL

Michigan has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable as written.

The unenforceable ban provides that any person who willfully administers any substance or employs any means with the intent to cause an abortion unless necessary to preserve the woman's life is guilty of a felony.  Mich. Comp. Laws Ann. § 750.14 (Enacted 1931).  A court held that as applied to non-physicians, the ban is constitutional, but as applied to physicians, the court noted in dicta that the statute could not prohibit abortions in the first trimester of a pregnancy because of the U.S. Supreme Court's decision in Roe v. Wade.  See People v. Bricker, 208 N.W.2d 172 (Mich. 1973). See also People v. Higuera, 625 N.W.2d 444 (Mich. Ct. App. 2001) (recognizing that, in enacting abortion regulations after Bricker, the Michigan legislature intended to regulate abortion as permitted by U.S. Supreme Court case law).

The ban also provides that any person who advertises abortion services is guilty of a misdemeanor punishable by imprisonment for up to one year or a fine of up to $500.  Mich. Comp. Laws Ann. § 750.34 (Enacted 1931; Last Amended 2002).  Any person who advertises or sells, except by the written prescription of an established practicing physician of the city, village, or township in which the sale is made, a drug designed and expressly prepared for inducing an abortion is guilty of a misdemeanor.  Mich. Comp. Laws Ann. § 750.15 (Enacted 1931).  Any person who publishes or sells a circular, pamphlet, or book with recipes or prescriptions for producing abortifacients is guilty of a misdemeanor.  Mich. Comp. Laws Ann. § 750.40 (Enacted 1931).

In 2004, Michigan enacted a law prohibiting abortions that could be performed as early as the first trimester, without any meaningful exception to protect a woman's health.  Mich. Comp. Laws Ann. §§ 333.1081 to 1085 (Enacted 2004).

After a nearly identical bill was passed by the legislature but vetoed by pro-choice Governor Jennifer Granholm, the ban was enacted by a "citizen's initiative," a petition which was endorsed by a very small percentage of the voting population.  As a citizen's initiative, the ban, upon passage by the legislature, could neither be vetoed by the governor, nor overturned via ballot vote.  Michigan's attorney general issued an opinion stating that the law outlaws only one procedure.  Mich. Op. Att'y Gen. No. 7174 (Apr. 4, 2005).  Courts rejected that determination and declared the law unconstitutional because it:  (1) places an undue burden on the woman's right to reproductive choice, (2) fails to protect the health of women, (3) contains a constitutionally inadequate life exception, and (4) includes language that is unconstitutionally vague.  Northland Family Planning Clinic v. Cox, 487 F.3d 323 (6th Cir. 2007), cert denied, 76 USLW 3095 (Jan. 7, 2008).

In addition, Michigan also has an unconstitutional and unenforceable ban which outlaws abortions performed as early as twelve weeks.  Mich. Comp. Laws Ann. § 750.90g (Enacted 1999).

A court held that Michigan's ban enacted in 1999 is unconstitutional because it lacks an exception to protect women's health. The court issued a permanent injunction prohibiting the law's enforcement.  WomanCare of Southfield, P.C. v. Granholm, 143 F. Supp. 2d 849 (E.D. Mich. 2001). The U.S. Supreme Court previously held that a similar ban that lacks an exception to protect a woman's health and that bans more than one procedure is unconstitutional.  Stenberg v. Carhart, 530 U.S. 914 (2000).

This unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless in the physician's reasonable medical judgment the procedure or action is necessary to preserve the woman's life and every reasonable precaution is taken to preserve the fetus' life.  Penalties include imprisonment for life or any term of years, a fine of up to $50,000, or both.  Mich. Comp. Laws Ann. § 750.90g (Enacted 1999).

In addition, a court held that Michigan's original ban on abortions performed as early as twelve weeks was unconstitutionally vague and created an undue burden on a woman's right to choose and has issued a permanent injunction prohibiting its enforcement.  Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997).

This unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a misdemeanor punishable, for the first offense, by a fine of up to $100, imprisonment for up to 90 days, or both, and for a subsequent offense, by a fine of $200 to $500, imprisonment for 90 days to six months, or both, and is subject to revocation or denial of a professional license unless the physician or agent reasonably believes that the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury and no other medical procedure will suffice.  Mich. Comp. Laws Ann. §§ 333.16221 (Enacted 1978; Last Amended 2004), 333.16226 (Enacted 1978; Last Amended 2004), 333.16299 (Enacted 1978; Last Amended 2003), 333.17016 (Enacted 1996), 333.17516 (Enacted 1996).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after a physician, nurse, physician's assistant, psychologist, social worker, or qualified counselor confirms the patient is pregnant and orally describes to the patient the probable gestational age of the fetus.

In addition, at least 24 hours prior to an abortion, the woman must receive, in person or by mail, parcel delivery, facsimile, or website, state-prepared materials that:  (1) include a pamphlet on prenatal care and parenting; (2) describe, with medically accurate depictions, illustrations, or photographs, the probable anatomical and physiological characteristics of the fetus at two-week gestational increments; (3) describe procedures and identify physical complications associated with abortion and with childbirth; (4) identify services available through public agencies to assist the woman during pregnancy and after childbirth, including adoption and foster care, or after an abortion "should she experience subsequent adverse psychological effects"; and (5) state "that as a result of an abortion, some women may experience depression, feelings of guilt, sleep disturbance, loss of interest in work or sex, or anger."

If the woman accesses this material via the Department of Community Health website, the confirmation form she receives expires 14 days after the date and time printed on the form.  In addition, prior to the abortion a physician, personally and in the woman's presence, must describe the risks associated with the procedure and with continuing the pregnancy and tell the woman the name of the physician who will provide the abortion, and the information of her right to withhold or withdraw her consent to the abortion.

If at any time prior to an abortion the woman receives an ultrasound, or the physician determines an ultrasound will be needed, the physician or qualified person assisting the physician must offer the woman an opportunity to view the ultrasound images.  The website must also include information on locations where the woman can obtain a free ultrasound.

Mich. Comp. Laws Ann. §§ 333.17015 (Enacted 1993; Last Amended 2002); .17015 (Enacted 1993; Last Amended 2006). 

A court has approved a settlement agreement regarding this law that, among other things:  (1) removes the law's requirement that all abortion literature be state-produced, allowing physicians to use other appropriate documents when state-prepared materials are not available; and (2) eliminates the 24-hour waiting period in medical emergencies.  Northland Family Planning Clinic, Inc. v. Granholm, No. 01-CV-70549 (E.D. Mich. Apr. 12, 2001) (order adopting partial settlement). 

This settlement agreement complements and does not supersede the majority of a previous court-approved settlement agreement's provisions regarding an earlier version of this law, including a provision expanding the definition of a "qualified person assisting the physician" who may provide the state-mandated information to include "any person who is 'qualified by education, training, or experience,' and who is an agent of and who acts under the supervision of a licensed professional."  Northland Family Planning Clinic, Inc. v. Engler, No. 94-75351 (E.D. Mich. June 17, 1999) (settlement agreement). 

In addition, a court held that a provision of this law prohibiting collection of payment for "abortion related" services rendered until expiration of the 24-hour waiting period is unconstitutionally vague and has issued a permanent injunction prohibiting its enforcement.  Northland Family Planning Clinic, Inc. v. Granholm, No. 01-70549 (E.D. Mich. Feb. 26, 2002) (memorandum opinion and order).  Northland Family Planning Clinic, Inc. v. Olszewski, No. 03-71054 (E.D. Mich. Apr. 30, 2003).

Additionally, a state court held that the previous version of this law was constitutional under the state constitution.  Mahaffey v. Attorney General, 564 N.W.2d 104 (Mich. Ct. App. 1997), appeal denied, 456 Mich. 948 (Mich. 1998); Mahaffey v. Attorney General, No. 94-406793 AZ (Mich. Ct. App. Oct. 26, 1998). 

In addition, the Michigan attorney general has issued an opinion stating that this "informed"-consent law applies to the use of mifepristone because the law defines abortion as including the use of a drug to terminate a pregnancy. Mich. Op. Att'y Gen. No. 7077 (Mar. 13, 2001).

Counseling Ban/Gag Rule

State Department of Community Health funds for pregnancy-prevention programs shall not be used to provide abortion counseling or referrals.  S. 1094, 94th Leg., 2008 Reg. Sess. (Mich. 2008) (Enacted 2008).

The Department of Community Health must give priority in allocation of family planning and reproductive-health-services funds to entities that do not provide elective abortion services, refer for abortion services, or have a policy that abortion is considered part of a continuum of reproductive-health services.  Elective abortion is defined as abortion not necessary to preserve a woman's life due to a physical condition of the woman.  Mich. Comp. Laws Ann. § 333.1091 (Enacted 2002).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Michigan allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Physicians, nurses, medical students, student nurses, or individuals who are members of, associated with, or employed by a hospital, institution, teaching institution, as well as hospitals, institutions, teaching institutions, or health facilities.

What does the refusal clause allow?  No physician, nurse, medical student, student nurse, or individual who is a member of, associated with, or employed by a hospital, institution, teaching institution, or health facility, who objects on professional, ethical, moral, or religious grounds, may be required to participate in medical procedures that result in an abortion.  The refusal of an individual to participate may not be the basis for civil or criminal liability, penalty, disciplinary action, or discrimination by a patient, hospital, institution, teaching institution, or health facility.

No hospital, institution, teaching institution, or health facility may be required to participate in an abortion, permit an abortion on its premises, or admit a woman for the purpose of performing an abortion.  The refusal of a hospital, institution, teaching institution, or health facility to participate may not be a basis for civil or criminal liability or penalty.  Previous participation or an expressed willingness to participate in an abortion may not be a basis for discrimination by a hospital, institution, teaching institution, or health facility against an individual.

A physician who refuses to give advice concerning abortion and discloses this refusal to the patient may not be liable for the refusal.  The refusal of a person other than a physician to give advice concerning abortion may not be a basis for civil liability, discipline, or discrimination.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  No.   

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Mich. Comp. Laws Ann. §§ 333.20181 to .20184 (Previous Version Enacted 1973; Current Version Enacted 1978).

INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE

Although Michigan law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.

What is the legal basis for this requirement?  Unlike other states, Michigan has not enacted a specific contraceptive coverage law.  Rather, the Michigan Civil Rights Commission issued a Declaratory Ruling, stating an employer's exclusion of prescription contraceptives from a health plan that covers other prescription drugs violates the Elliott-Larsen Civil Rights Act, which prohibits sex discrimination.

To whom does the refusal clause apply? Religious employers for whom contraception is contrary to their religious tenets.

What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.

Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No.  The law narrowly defines the term "religious employer" as a non-profit organization that has the purpose of inculcation of religious values and that primarily employs and serves persons who share the religious tenets of the entity.  This narrow definition is appropriately limited in scope, applying to religious entities but not broad-based entities that operate in the public sphere.

Does the ruling require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause?  No.

Michigan Civil Rights Commission, Declaratory Ruling on Contraceptive Equity, Aug. 21, 2006, at http://www.michigan.gov/documents/Declaratory_Ruling_7-26-06_169371_7.pdf (last visited Jan. 4, 2008); Mich. Comp. Laws §37.2201 (Enacted 1976; Last Amended 1980), 37.2202 (Enacted 1976; Last Amended 1991); James Prichard, Civil Rights Commission: Drug Plans Can't Exclude Contraceptives, Assoc. Press, Aug. 22, 2006.

Restrictions on Low-Income Women's Access to Abortion

Michigan prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest.  Mich. Dep't of Comm'y Health, Medical Servs. Admin., Medicaid Provider Manual, Hospital, § 3.1 (Oct. 1, 2006), at http://www.mdch.state.mi.us/dch-medicaid/manuals/MedicaidProviderManual.pdf; Mich. Dep't of Comm'y Health, Medical Servs. Admin., Medicaid Provider Manual, Certification for Induced Abortion MSA-4240 (Rev. May 1997) at http://www.mdch.state.mi.us/dch-medicaid/manuals/MedicaidProviderManual.pdf.

An invalid and enjoined statute provides that a woman eligible for state assistance may not obtain public funds to pay for an abortion unless the procedure is necessary to preserve her life.  Mich. Comp. Laws Ann. § 400.109a (Original Statute Enacted 1939; Relevant Provision Enacted 1987).

The state supreme court held that this statute does not violate the Michigan Constitution by permitting the state to fund the expenses of childbirth even though the state does not fund abortion.  Doe v. Dep't of Soc. Servs., 487 N.W.2d 166 (Mich. 1992).

However, a federal court held that this statute conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment, and issued a permanent injunction prohibiting its enforcement to the extent that it conflicts with federal law.  Planned Parenthood Affiliates of Mich. v. Engler, 73 F.3d 634 (6th Cir. 1996).

Another partially invalid statute provides that any healthcare professional, facility, or agency that seeks or accepts payment for an abortion knowing that public funds would be used to make the payment in violation of § 400.109a may be fined up to $10,000 per violation.  Mich. Comp. Laws Ann. § 400.109e (Original Statute Enacted 1939; Relevant Provision Enacted 1996).  This statute is invalid to the extent it applies to abortions in cases of rape, incest, and life endangerment.

In addition, the Michigan Attorney General has issued an opinion stating that the use of mifepristone to terminate a pregnancy is an abortion under these public funding provisions.  Mich. Op. Att'y Gen. No. 7077 (Mar. 13, 2001).

Restrictions on Young Women's Access to Abortion

Michigan law restricts young women's access to abortion.

Is the law enforceable?  Yes.  A state trial court held that this law is constitutional.  Planned Parenthood of Mid-Michigan, Inc. v. Attorney General, No. D 91-0571 AZ (Mich. Cir. Ct., Kalamazoo Cty. Apr. 29, 1994).

Who is considered a minor?  A young woman under the age of 18 who is not emancipated.

What is required - parental consent or parental notice?  Consent.

Who must provide consent?  One parent.

Are there other trusted adults who may provide consent instead?  No.

What is the process for obtaining consent?  A young woman may not obtain an abortion unless the attending physician secures the written consent of one parent.

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if a medical emergency exists.  A medical emergency is defined as a medical condition of the pregnant woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is sufficiently mature and well informed to make her own decision or that the waiver of parental consent is in her best interests.

Are there other significant requirements under the law?  If in the course of the judicial bypass procedure, the minor reveals to the judge that her pregnancy may be the result of sexual abuse, the judge must:  (1) report the suspected sexual abuse to the department of social services or a law enforcement agency; and (2) inform the young woman of laws designed to protect her.

Has a court considered the constitutionality of this law?  Yes.  A court has rejected constitutional challenges to specific provisions of this law.  Planned Parenthood of Mid-Michigan, Inc. v. Attorney General, No. D 91-0571 AZ (Mich. Cir. Ct., Kalamazoo Cty. Apr. 29, 1994).

Other information about the law:  The Michigan Attorney General issued an opinion stating that this minors' access law applies to the use of mifepristone because the law defines abortion as including the use of a drug to terminate a pregnancy.  Mich. Op. Att'y Gen. No. 7077 (Mar. 13, 2001).

Targeted Regulation of Abortion Providers (TRAP)

Michigan imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Michigan has such regulations, including:

Providers of abortion services at all stages of pregnancy must be licensed as freestanding surgical outpatient facilities; only those physicians' offices and facilities where less than 50 percent of the patients annually served undergo abortion procedures are exempt.  Mich. Comp. Laws Ann. § 333.20115 (Enacted 1978; Last Amended 1999); Mich. Admin. Code r. 325.3802(d), (h).

Administrative, professional qualification, and physical plant requirements are imposed on the surgical outpatient facilities.  Mich. Admin. Code rr. 325.3822, .3874; Mich. Comp. Laws Ann. § 333.20821 (Enacted 1978), Mich. Comp. Laws Ann. §333.2835 (Enacted 1978; Last Amended 2002).

Restrictions on Who May Perform Abortions

Michigan prohibits certain qualified health care professionals from performing abortions.

A court held that Michigan's pre-Roe abortion prohibition is constitutional as applied to non-physicians.  Mich. Comp. Laws Ann. § 750.14 (Enacted 1931); People v. Bricker, 208 N.W.2d 172 (Mich. 1973).