Michigan Democrats eye other abortion law changes as Prop 3 set to take effect

• Job one, Democrats say: Repeal a 1931 law banning abortion that has been blocked by the courts
• Staffers are researching other areas of the law that may be affected by Proposal 3 that made abortion a state right
• More than a dozen state laws may be impacted

LANSING — Michigan’s constitutional amendment guaranteeing abortion rights takes effect Dec. 23, but Democrats who take control of the Legislature in January say work remains to be done on reproductive freedoms.

Tops on the to-do list is repealing the state’s now-blocked 1931 abortion ban, incoming Senate Majority Leader Winnie Brinks, D-Grand Rapids, told Bridge Michigan in an interview.

“That is definitely on the agenda,” she said.

Related:

• Nov. 9: Abortion locked into Michigan constitution. What comes next.
• Nov. 8: Michigan Proposal 3 supporting abortion rights wins big
• July 29: Michigan abortion waits stretch for weeks as out–of-state patients pour i
• June 24: Michigan's emotions span from tearful to jubilant over abortion ruling

That law, now unenforceable after voters approved Proposal 3 in November, deems performing most abortions a felony punishable up to four years in prison or $5,000 in fines, 

The Legislature is awaiting feedback from staff researchers and advocacy groups, such as the Planned Parenthood of Michigan and American Civil Liberties Union Michigan, to identify any laws that contradict with Proposal 3, Brinks told Bridge.

The amendment allows lawmakers to prohibit abortion after “viability,” which defines as when a fetus can survive outside the womb without "extraordinary medical measures." 

The Michigan proposal leaves that determination up to attending medical professionals.

“My guess is, it’s very likely that there will be some legislation that helps us clarify or make consistent our laws on the books with what the constitution will say,” Brinks said.

Incoming House Speaker Joe Tate, D-Detroit, did not respond to inquiries for comment from Bridge.

Less certain is the fate of abortion restrictions sometimes opposed by progressives, such as Michigan laws requiring parental consent and a 24-hour waiting period before procedures.

Proposal 3 opponents had contended that the constitutional amendment would sweep away current laws, but the proponents of the measure have remained steadfast that regulations such as laws requiring parental consent, a 24-hour waiting period and public health standards for clinics would remain in place. 

“I gave my word. I publicly said 'Nothing will change,’” Renee Chelian, founder of abortion provider Northland Family Planning Centers in southeast Michigan, told Bridge Michigan.

“We are, and want to be respected as, ethical and thoughtful people. We’re not going back on our word.”

Neutral legal experts have told Bridge state laws regarding abortion will remain on the books unless changed by state lawmakers or challenged in court, where a judge would decide if those laws are still valid.

With severe restrictions in Ohio and Indiana, though, Michigan is poised to become a haven for those seeking abortions — and the 24-hour waiting period could be a target.

“There's no medical reason for these barriers,” said Elizabeth Nash, principal policy associate for the Guttmacher Institute, a New York-based research group that supports abortion. 

“If there needs to be regulation, then it needs to follow the evidence. These kinds of restrictions just don’t,” Nash said.

Abortion opponents say they are ready to fight any rollback of regulations. 

“Should pro-abortion advocates try again next session to overturn abortion restrictions, many of which have wide public support, there will be opposition from pro-life organizations… regardless of the composition of the Legislature or likelihood of passage,” said David Maluchnik, spokesperson for the Michigan Catholic Conference.

Here are some of the state’s abortion regulations the state Legislature could examine this year:

Waiting period

Under state law, before an abortion is performed, physicians must give the patient information about the procedure and examine the patient for signs of coercion. 

The patient must then give their consent to the procedure — or obtain parental consent if they are minors — and wait 24 hours before receiving the care.

Brinks did not indicate that state lawmakers would change the informed consent requirement — or any law other than the 1931 ban — until the legislative services bureau finishes its analysis. 

Abortion clinic health standards

Abortion providers in Michigan are subject to multiple requirements. 

Clinics that performs 120 or more abortions annually and advertises the services must be licensed as “freestanding surgical outpatient facilities,” according to a state analysis of a 2012 law. 

They must be inspected and meet the public health standards — standards for room size or type of lighting, for example — as any  freestanding surgical outpatient facilities.

And only licensed physicians can perform an abortion in Michigan. 

Abortion providers claimed the 2012 law required extensive renovations, and some states’ laws have been overruled as too onerous.

In 2016, for example, the U.S. Supreme Court struck down Texas laws requiring abortion providers to meet hospital-like standards and physicians performing abortions to have admitted privileges at a nearby hospital. 

Public funding for abortions

Michigan is among 33 states and the District of Columbia that bans Medicaid coverage of abortion except in cases of rape, incest or when the patient’s life is in danger, according to the national health care research nonprofit Kaiser Family Foundation. 

That is exceedingly rare: Michigan paid for an average of 6.6 abortions per year between 2013 and 2017, according to a 2019 federal report.

For more than 40 years, the U.S. government’s Hyde Amendment has barred the use of federal funds to pay for abortions in most case, but allows states to use their own money to pay for the procedure.

In all, 15 states use their own money to extend abortion to low income Medicaid recipients, according to Planned Parenthood. 

“Helping build the infrastructure for clinic capacity and helping patients access abortion care is key to ensuring to serve filling the promise of the constitutional amendment,” said Guttmacher’s Nash.

Parental consent

The state requires children under 18 seeking an abortion to obtain a written consent from a parent or a legal guardian. 

But that requirement can be waived if the child petitions the court and proves they are “sufficiently mature” and a waiver would be in their “best interests.”

Planned Parenthood Executive Director Nicole Wells Stallworth said the organization does not have policy priorities until the Legislature decides on what state laws the proposal would affect. 

But, she noted, parents have to give their consent to their child receiving medical care if they are injured playing sports at school, and the same goes for abortion, which she said is also medical care.

“I don’t anticipate that there may be a significant change to any of (the parental consent requirements),” she said.

‘Partial-birth abortion’ ban

A 2012 state law bans “partial-birth abortion” — defined as an abortion where someone “deliberately and intentionally vaginally delivers a living fetus” until certain parts of the fetus are outside the patient’s body. 

The law, which makes an exception for when the abortion patient’s life is in danger, mirrors the 2003 federal Partial-Birth Abortion Ban Act. 

The term “partial-birth abortion” is a political term coined by the National Right to Life Committee in 1995. It is often used to refer to dilation and evacuation, the most common procedure used to perform abortions later in pregnancies, between 14 and 28 weeks of gestation. 

But tinkering with the state law would have little to no practical application since a federal ban trumps the state constitution.

Abortion later in pregnancy is rare. Fewer than 1 percent of the 629,898 abortions nationwide in 2019 were performed beyond 21 weeks, according to data from the Centers for Disease Control and Prevention. In Michigan, 6 percent of the more than 30,000 abortions were performed by dilation and evacuation in 2021.