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D & X / PBA PROCEDURES

MICHIGAN STATE LAWS

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Disclaimer:

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.

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Michigan laws against D&X procedures (a.k.a. Partial Birth Abortions):

bullet1996: 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.
bullet1999: A second law was passed and became law. It also was ruled unconstitutional for the same reason.
bullet2003: 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. 
bulletOn APR-29, the Senate Judiciary Committee passed the bill by a vote of 4 to 3.
bulletOn MAY-01, the full Senate passed the bill by a vote of 24 to 12.
bulletOn MAY-05, the House Committee on Family and Children Services passed the bill by a vote of 6 to 3.
bulletOn 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.
bulletOn 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 newspapers.
bulletOn OCT-07, after the Senate agreed with the amendments, the bill was sent to the Governor.
bulletOn 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.
bullet2004:
bulletOn JAN-15, 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.
bulletOn 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.
bulletSenator Gilda Jacobs (D) predicted: "We will now embark on an expensive legal battle where the courts will once again decide in favor of women."
bulletSen. Alan Cropsey (R) said: "Let's call it for what it is. It is an evil procedure."
bulletBarbara 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.

bullet2005:
bulletOn 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 Azulay wrote:

"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.

bulletOn 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 inadequate." 7
bulletOn 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 Court." 9

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Cardinal Adam Maida, " 'We're All In This Together,' Legal Birth Definition Act 'Deserves to Become Law'," Archdiocese of Detroit, 2003-SEP-28.
  2. Amy Bailey, "Michigan Governor Vetoes Abortion Bill," NewsDay.com, at: http://www.newsday.com/
  3. "Legal Birth Definition Act," Pro-Choice Michigan, modified 2005-MAY-23, at: http://www.prochoicemichigan.org/
  4. Jessica Azulay, "Pro-Choice Groups Avert 'Vague' Michigan Abortion Ban, For Now," The New Standard, 2005-MAR-17, at: http://newstandardnews.net/
  5. Pauline Chang, " 'Legal Birth Definition Act' passes in Michigan - Pro-lifers celebrate 'people's victory," CrossMap News, 2005-JUN-11, at: http://news.crossmap.com/
  6. "Enforcement of Michigan's Legal Birth Definition Act Delayed Until June 15 Pending Court Challenge," Kaiser Network, 2005-MAR-16, at: http://www.kaisernetwork.org/
  7. "Michigan's Legal Birth Definition Act Does Not Ban All Abortions, State Attorney General Says," Kaiser Network, 2005-APR-07, at: http://www.kaisernetwork.org/
  8. "Judge declares Michigan abortion law illegal," Massachusetts Family Institute, E-Alert, 2005-SEP-15.
  9. "Legal Birth Definition Act," Right to Life of Michigan, undated, at: http://www.rtl.org/html/

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Copyright © 2005 by Ontario Consultants on Religious Tolerance.
Originally posted: 2005-SEP-16
Last updated: 2005-SEP-16

Author: B.A. Robinson

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