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. §§ 333.17014 (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).