Abortion confusion reigns across Michigan days after Roe reversal

August 1: Michigan abortion ban is — then isn’t — in effect after two court rulings

The fall of federal abortion protections has meant days of confusion in Michigan. 

Hours after the U.S. Supreme Court overturned Roe v. Wade on Friday, the state’s largest hospital system initially told employees that a 1931 law once again banned abortion in the state, only to reverse course and say it would, in fact, continue to provide the procedure when medically necessary.

The uncertain status of that law grew hazier Monday when, as Bridge Michigan reported, two county prosecutors now consider the abortion ban to be in effect, despite a court placing an injunction on the statute’s implementation last month. Their comments contradicted Democratic Attorney General Dana Nessel and Gov. Gretchen Whitmer, who insist the old law has no effect so long as the injunction is in place.

Related stories:

• June 27: Abortion providers may face charges in Kent, Jackson counties, attorney says
• June 24: What’s next after Roe in Michigan: Lawsuits, a ballot measure and uncertainty
• June 24: With Roe overturned, Michigan becomes an abortion ‘haven,’ for now
• June 23: Abortion rivals say Roe reversal could have surprising impact in Michigan

All of which infuriated Renee Chelian, founder of Northland Family Planning Centers, which provides about 9,000 abortions a year at three metro Detroit clinics.

“Our doctors…were furious…and others are afraid they could lose their (labor and delivery) privileges,” Chelian said of the turmoil spawned by the initial guidance sent to workers by the combined Beaumont and Spectrum health system, now known as BHSH.

The whiplash of contradicting statements on Michigan abortion law prompted Whitmer, who supports abortion access, to renew her plea to the state’s highest court to quickly settle the question.

“(C)ertain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan,” the governor said, which “only underscores the need for the Michigan Supreme Court to act now."

The uncertainty is not likely to ebb soon. Anti-abortion advocates are seeking to intervene to overturn the May injunction, which effectively suspended the 1931 law’s effect. Whitmer has her own petition asking the Michigan Supreme Court to declare a right to abortion under the state’s constitution. And abortion-rights advocates will soon have to show they collected enough signatures to get a state constitutional amendment ensuring the right to abortion on the November ballot. 

Even if those efforts fail, and the 1931 law —  which bans abortion except to save the life of the mother — is restored, uncertainty and litigation are sure to continue, as doctors and health officials argue the law does not spell out which conditions are considered life-threatening.   

David Kallman, senior attorney with the faith-based Great Lakes Justice Center, said the confusion is justified. The injunction last month that suspends the 1931 law is tenuous at best, said Kallman, who represents the two county prosecutors who say they will consider charging under the law. 

The center contends there is no state constitutional right to an abortion in Michigan.

“If I were a doctor doing abortions in Wayne County, or in Oakland County (where) the prosecutors said they're not going to prosecute you, you're probably free to go ahead” and perform abortions, Kallman said. 

“But if you're a doctor, or someone performing an abortion in Kent County or Jackson County (where prosecutors said they would consider prosecuting providers under the law) I’d advise them: You better be careful.”

Uncertainty extends to hospitals 

The vast majority of abortions are performed at abortion clinics rather than hospitals. Last year, 238 of more than 30,000 total abortions in Michigan were in a hospital setting, which typically get involved only when there is a serious medical complication.   

Another 351 were performed in private providers’ offices, according to state data.

But BHSH’s initial communication to workers underscored the uncertainty ahead for hospital, clinic and other healthcare organizations in Michigan

Late Friday afternoon, hours after the nation’s highest court reversed Roe, Tina Freese Decker, the system’s CEO, told employees Michigan’s 1931 law, which banned abortions except to save the life of the mother, “is now in effect.” 

The note did not mention the court order temporarily suspending the 1931 law issued last month by Court of Claims Judge Elizabeth Gleicher. In her ruling, Gleicher wrote that abortion providers and patients "face a serious danger of irreparable harm if prevented from accessing abortion services” following the anticipated demise of the Roe ruling, which came Friday.

Hours after that first message the health system reversed course, indicating it would continue to provide abortions for a range of medically necessary reasons. It reiterated its message Saturday in a third message. 

“After extensive evaluation and in-depth discussion, and always using compassion as our guide, we have evolved our approach,” the new message said.

“(U)ntil there is clarity, we will continue our practice of providing abortions when medically necessary,” it read.

Mark Geary, spokesperson for the health system, told Bridge in an email Tuesday that BHSH would not interfere with employees performing abortions or patients for having them.

Rather, “We will support our physicians and patients as they navigate this challenging landscape,” he said.

Other Michigan hospitals said they will continue performing medically necessary abortions as they had before Dobbs v. Jackson Women’s Health Organization, the Friday ruling that overturned federal abortion protections. 

The University of Michigan’s Michigan Medicine said the university and its health system “remain committed to providing high quality, safe reproductive care … This includes abortion care, which remains legal in Michigan, even following today’s U.S. Supreme Court opinion.” 

Likewise, Traverse City-based Munson Healthcare said it will provide medically necessary abortions, noting that Dobbs returns decisions on abortion law to individual states. 

Other Michigan health systems were circumspect or would not comment on abortion policy.  

Henry Ford Health, with more than 33,000 employees, did not announce its policy, saying only it is “working to determine what the implications (are) from this significant change in the legal and medical landscape.”

Likewise, in the Upper Peninsula, UP Health System and War Memorial Hospital, part of MidMichigan Health, said they too were studying the implications.  

Memorial Healthcare in central Michigan’s Owosso and the Detroit Medical Center and Hillsdale Hospital in southeast Michigan did not comment.

The American Civil Liberties Union has filed complaints over the years against St. Louis-based Ascension, which has Michigan hospitals, and Canton-based Trinity Health for failing to provide abortions or other reproductive care. The ACLU unsuccessfully sued the U.S. Conference of Catholic Bishops in 2015. Trinity Health spokesperson Bobby Maldonado said the system had no comment. Ascension did not respond  to requests for comment. 

Questions about statute 

Until the trial court’s order last month, the 1931 law was poised to once again ban abortion in Michigan when Roe fell. The law makes it a felony  — punishable by up to four years in prison and/or a fine of up to $5,000 — for anyone to perform an abortion in the state. The only exception would be to preserve the life of the mother. The law carried no exception for rape or incest, or for other medically related reasons, such as the detection of prenatal genetic abnormalities. 

Physicians who perform abortions in violation of the statute could also face administrative penalties from the state, including revocation of medical licenses. Clinics, too, could face penalties.

The injunction now blocking the law is tenuous, and is likely to end up before the Michigan Supreme Court.

Even if the law is eventually instituted, doctors and medical experts say they will likely need more specifics on what constitutes a condition that threatens the life of a pregnant patient. 

The law is “legally vague and does not provide adequate guidance to address healthcare standards in 2022,” John Karasinski, spokesman for the Michigan Health & Hospital Association, told Bridge in an email.

“For example, what if there is a significant risk that continuing the pregnancy will cause a life-threatening outcome, but it’s not a 100-percent risk,” Karasinski asked. “Questions remain regarding how much medical risk must exist and who makes that determination — medical providers or non-medical individuals such as county prosecutors.” 

Dr. Lisa Harris of the Committee to Protect Health Care, a national doctors group that supports abortion access, agreed, saying Monday that the Michigan law does not describe how likely, or imminent, a woman’s death must be for an abortion to be justified. 

That means women at high risk of developing complications during later stages of pregnancy may not be able to obtain an abortion early in anticipation of that risk. Harris said a pregnant woman with cancer might be forced under one interpretation of the 1931 law to delay cancer treatment to carry the child to term instead of being allowed to abort the fetus.

“That’s a risk to her life, but it’s a risk that she may not experience for a year or two or even more years.”

Dr. Melissa Bayne, an OB-GYN in rural Michigan who is also a member of the committee, said she sometimes has patients who find out their babies have died in the womb and seek a medication abortion. 

"They are so excited and they are there with their partner, and I go and do that ultrasound, and they look for that heartbeat and it's not there, then it's that conversation of grief," she said. 

Most of her patients choose medication abortion because it is effective, safe and allows them to do it in their home rather than at a clinic or hospital, Bayne said. But under the 1931 law, Harris argued, that would be illegal.

“Anything you do medication-wise or as a procedure to induce miscarriage is illegal,” Harris said of the law. “So much uncertainty is going to now present itself in care.”