The following is information only, not legal advice. Do not make any
decisions on the basis of this essay. If you have a personal legal situation,
you may want to consult a lawyer who specializes in this area. This text is
believed to be accurate when it was last edited.
Michigan laws against D&X procedures (a.k.a. Partial Birth Abortions):
1996: An anti D&X law was passed by the legislature and signed by
the governor. However, it was declared
unconstitutional by the courts because it lacked an exception clause
to protect the woman from a devastating health
impact if she is denied a D&X procedure.
1999: A second law was passed and became law. It also was ruled
unconstitutional for the same reason.
2003: A third law was introduced into the legislature as Senate
Bill 395. It did not criminalize D&X procedures (a.k.a. partial birth
abortion). Instead, it defined birth as occurring when any
part of a fetus emerges from a woman's body and shows signs of life. The
sponsors rationale was that once the fetus is born, it would immediately
become entitled to certain legal rights, including the right to life.
On APR-29, the Senate Judiciary Committee
passed the bill by a vote of 4 to 3.
On MAY-01, the full Senate passed the bill by
a vote of 24 to 12.
On MAY-05, the House Committee on Family and
Children Services passed the bill by a vote of 6 to 3.
On MAY-14, the House amended the bill to
protect physicians who inadvertently injure a fetus while trying to
avert an imminent threat to the physical health of the woman. They also
amended the bill to protect physicians who were performing a procedure
to complete a miscarriage. The House then passed the amended version of
the bill by a vote of 74 to 28.
On SEP-28, Cardinal Adam Maida, Archbishop of
Detroit wrote: "The question before us today is life… life itself.
Without a determination of when a child is legally born, every partially
born child in Michigan is at risk. We're all in this together… including
and especially our newest and most vulnerable citizens, our newborn
children." 1 His
message was published as a full-page ad in the major Michigan
On OCT-07, after the Senate agreed with the
amendments, the bill was sent to the Governor.
OCT-10, during Respect Life Month, Governor Jennifer Granholm (D) vetoed
the bill because it lacked a health clause, and thus was obviously
unconstitutional. She said that: "federal courts repeatedly have declared
unconstitutional efforts to end partial birth abortion." 2
This is an unusual event. There have been hundreds of cases
across the U.S. where state and federal lawmakers have passed bills
while knowing that they were unconstitutional. But it is a rare event
when a governor refuses to play along by signing such a bill into law.
Some opponents of the bill said that it was worded so broadly that it could restrict all abortions. The bill was opposed by two professional
medical associations. There was insufficient support in the Senate to override the governor's veto.
the Right to Life of Michigan, the Michigan Catholic
Conference and the Knights of Columbus, joined with
a number of pro-life and Christian groups
to launch the "People's Override" petition drive. The goal was to
override the governor's 2003 veto by collecting support from at least
254,506 citizens of Michigan. This would enable the Michigan Legislature
to enact the law by only a simple majority, without requiring the
governor's signature. 3
They actually collected 460,034 signatures -- the largest signature
drive ever achieved in the state by non-professional circulators.
On JUN-09, the Legislature voted on the
Legal Birth Definition Act for the second time. The bill was passed
in the senate by a vote of 23 to 11, and in the House by 74 to 28. The
bill defines "birth" as happening when any part of the fetus emerges
from the birth canal, and shows signs of life --"either a
detectable heartbeat, evidence of breathing, evidence of spontaneous
movement, or umbilical cord pulsation." 4 The
law would effectively convert any D&X procedure into a homicide.
The bill contained a clause which would permit a D&X procedure if needed
to avert an imminent threat to the health of the woman. Critics of the
law suggested that the bill was so generally worded that it could be
interpreted as banning all abortions.
Senator Gilda Jacobs (D) predicted: "We
will now embark on an expensive legal battle where the courts will
once again decide in favor of women."
Sen. Alan Cropsey (R) said: "Let's call
it for what it is. It is
an evil procedure."
Barbara Listing, President of Right to
Life of Michigan, said: "For too long this horrific procedure
which kills children who are more born than unborn has been legally
tolerated. The people of Michigan have spoken in a resounding voice
that they will no longer let this evil stand." 5
A few days before this law was passed, a
federal judge in San Francisco, CA, ruled that a similar measure, the "Partial
Birth Abortion Ban" was unconstitutional. Similar lawsuits were
pending in New York and Nebraska.
The law was scheduled to take effect on 2005-MAR-30.
On MAR-01, the American Civil
Liberties Union, the Center for Reproductive Rights and
Planned Parenthood Federation of America launched a lawsuit in
federal court to prevent the law from being enforced. Reporter Jessica
"Though the ban is widely publicized as targeting late-term
abortions, women’s rights groups say that the language of the Act
could even be interpreted to apply to the three most common abortion
procedures performed in the first and second trimesters as well as
affect procedures doctors use to treat or complete a miscarriage.
During practice of such methods, parts of a live embryo or fetus
sometimes pass 'beyond the plane of the vaginal introitus,'
rendering it 'born' under the Act’s definition, though completion of
the procedures inevitably results in death to the fetus because it
is not viable outside the woman’s body."
" 'The Act criminalizes a broad range of procedures and actions
physicians regularly perform during virtually any common method of
pre-viability abortion,' reads the complaint, 'leaving physicians to
guess as to what procedures or actions are encompassed by the Act'."
"It is this ambiguity that abortion rights groups say might
severely limit abortion access in Michigan, as physicians and women
have no way to know if they will be safe from prosecution for almost
any procedure. The result, say the plaintiffs, is that some women
will be forced to travel out-of-state to seek abortions, a situation
which often means the procedure is delayed and therefore more risky
for the woman. Or, they say, some women could end up not obtaining
an abortion at all, unable to exercise their constitutional right to
terminate their own pregnancies." 4
U.S. District Judge Denise Page Hood issued a temporary restraining
order to delay implementation of the law until JUN-15. 6 She later extended the
date until her final ruling in September.
On APR-04, State Attorney General Mike Cox (R)
released a statement saying that the Legal Birth Definition Act
should be found constitutional by the courts. He disagreed with the
assessment contained in the complaint. He said that the law does not ban all
abortions. Cox said that here are no restrictions on "actions
taken before an anatomical part of an intact, live fetus passes beyond the
plane of the vaginal introitus of the mother's body." He said that the
law only would ban "intact dilation and extraction" abortion -- also
known as D&X -- when it is "performed on a legally born person...The
physician must look to ensure the life or physical health of the mother
without harming the (fetus) where medically possible. These considerations
do not, however, prevent a physician from performing a procedure that may
directly harm or kill the (fetus) where in the medical judgment of the
physician it is necessary to safeguard the mother's life or health."
Wendy Wagenheim, spokesperson for the American Civil Liberties Union of
Michigan suggested that the law should be ruled unconstitutional because
it would ban all abortions and does not provide exceptions for the health of
pregnant women. He said: "The legislators are interfering with the best
practices of physicians who have their patients at heart...The courts are
pretty clear that a woman's health is paramount, and this is just
On SEP-12, U.S. District Court Judge Denise
Page Hood ruled that the law is unconstitutional. It places an "undue
burden" on pregnant women; it is confusing and vague; its exceptions for
the health or life of a mother are meaningless and unconstitutional. She
wrote: "The act does not describe any specific procedure to be banned.
The act also does not distinguish between induced abortion and pregnancy
loss." 8,5 "Right to Life of Michigan is expected to: "...encourage
Attorney General Mike Cox to appeal this decision to the U.S. sixth Circuit