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Michigan has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable as written.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

AFTER 12 WEEKS

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.