In 1973, the landmark U.S. Supreme Court decision in Roe v. Wade granted Americans the constitutional right to access a safe and legal abortion.
But in May, the Supreme Court, which is considered to have the most right-wing tilt in decades, agreed to hear arguments on a Mississippi law banning abortions after 15 weeks, Dobbs v. Jackson Women’s Health Organization. That could result in the court overturning the Roe v. Wade decision.
Here’s an explainer on where reproductive health rights stand in our state and what such a decision could mean for Michiganders.
Roe v. Wade struck down a Texas statute banning abortion. The decision affirmed that a pregnant person’s right to an abortion was protected by the 14th Amendment and the right to privacy.
U.S. Supreme Court Justice Ruth Bader Ginsburg, a champion for reproductive rights, died in September, and former President Donald Trump successfully nominated anti-abortion Justice Amy Coney Barrett to give the court a 6-3 conservative majority. Reproductive rights advocates expressed concern the new court would quickly move to hear an abortion case — which it did this spring.
Right to Life of Michigan President Barb Listing issued a statement in May urging the court to overturn Roe.
“In 1973, the Supreme Court ripped away the issue of abortion from voters,” she said. “… It’s time for the Supreme Court to return the issue to the voters, where it rightly belongs in our democracy.”
Even before Barrett’s appointment, Michigan Attorney General Dana Nessel predicted at a 2019 Planned Parenthood event in Lansing that Roe would be scrapped. The Democrat vowed she would not prosecute women for abortions, inspiring some GOP lawmakers to threaten impeachment (which never came to pass).
“It is, I think, at this point likely that we will see Roe v. Wade overturned by the United States Supreme Court,” Nessel said. “So … I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy.”
One possibility is the court could restrict abortion rights without gutting Roe completely. However, if Roe were to be overturned, the power would likely return to the states to set their own laws regarding abortion restrictions or protections.
This isn’t the first time in recent years that access to abortion and reproductive health care have been at risk.
Over the last decade, a number of states have been testing the waters with how much they can curtail Roe v. Wade, rolling out legislation on several fronts that would restrict access to legal abortions.
According to the Guttmacher Institute, a pro-choice think tank, more abortion restrictions have been enacted nationwide in the first six months of 2021 than in any year since Roe v. Wade, totaling 90 restrictions across the country.
The short answer: It’s unclear.
“There would, frankly, be chaos in Michigan because it would not be clear,” said Lori Carpentier, CEO of Planned Parenthood Advocates of Michigan.
However, Right to Life argues that abortion would be illegal under Michigan law unless it is used to save the life of the mother. Prior to the high court’s decision, abortion had been illegal throughout much of the country, including in Michigan.
In 1931, Michigan passed a law that states: “Administering drugs, with intent to procure miscarriage — Any person who shall willfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.”
Almost a century has passed since this law was added to Michigan’s penal code and abortion rights advocates would likely challenge it in court.
“There would certainly be those that would be convinced that the 1931 law would outlaw abortion in all ways in the state. And I think just as quickly, we would have folks that would challenge it,” Carpentier said.
Michigan’s Supreme Court currently has the first Democratic-nominated majority in more than a decade.
In Michigan, the 1931 law that would potentially felonize people who get abortions could be what the state falls back on, but not everyone is convinced that the law has withstood the test of time.
“The 1931 law is unclear because the language is so outdated,” Carpentier said. “It sort of doesn’t apply today. It refers to miscarriage and abortion interchangeably, and now medical terminology wouldn’t allow that. … It contradicts itself; it uses old language. So most people think it’s going to take some clarification.”
State Rep. Laurie Pohutsky (D-Livonia), a member of the House Health Policy Committee, said that it’s concerning to her that the language in the law is so outdated because it makes it more unpredictable.
“On the optimistic side, yes, it might make it more difficult to enforce. But on the pessimistic side, it might also create complications in terms of what else could be criminalized,” Pohutsky said.
The lawmaker noted that in other states, like Arkansas, even having a miscarriage can lead to criminal penalties, and she is concerned that if this law isn’t repealed, that could be the case in Michigan.
But she’s working on that.
Michigan has previously tried to repeal the 1931 abortion ban before, but it’s failed each time. In 2019, Democrats rolled out the Michigan Reproductive Health Act (RHA), which aimed to repeal the nearly 90-year-old law, roll back abortion restrictions and increase access to abortion services and support. It had the backing of Democratic Gov. Gretchen Whitmer.
But the bill package was referred to the GOP-controlled Government Operations Committee and was never taken up.
Pohutsky says she is ready to reintroduce legislation again in the House and the bill is sitting in her office.
There’s a greater sense of urgency this time, Pohutsky noted, given what’s happening on the federal level.
As the Advance has previously reported, there also has been some discussion in recent years about a reproductive rights ballot measure in Michigan, such as enshrining the right to privacy in the Constitution in case Roe is overturned.
Like many states, Michigan already has some abortion restrictions in place.
Abortions can only be covered through private insurance polices and Affordable Care Act (ACA) in cases of life endangerment, unless individuals purchase an optional rider at an additional cost. Medicaid can only be used to fund an abortion in cases of life endangerment, rape or incest. Opponents labeled this “rape insurance.”
Abortions in Michigan are only allowed to be performed at or after viability if the patient’s life is at risk by the pregnancy.
Michigan also requires patients to go through state-directed counseling on supposed negative psychological effects, followed by a 24-hour waiting period before the procedure is provided.
For a minor to get an abortion, written consent is required from at least one guardian.
Current Michigan bills to restrict access to abortions
Outside of legal barriers to abortion services, there are geographical barriers.
If Michigan restricts abortions post-Roe, the closest states that have protections for abortion access would be Illinois or New York, Carpentier said, which women may have to travel to in order to get a legal, safe abortion.
Even with Roe v. Wade in place, abortion clinics in the state aren’t accessible to all pregnant people.
In 2017, the most recent year with available data, there were 30 facilities providing abortions in Michigan, and about 87% of Michigan counties had no clinics that provided abortions, according to the Guttmacher Institute.
About 35% of Michigan women live in those counties.
More than 40 years after Michigan’s abortion ban was signed into law, there was a 1972 ballot initiative to allow licensed physicians to perform abortions upon demand if period of gestation has not exceeded 20 weeks.
The proposal made it to the ballot in November 1972, but was struck down by voters.
“Everyone thought it was going to pass — they were very confident it was going to pass — and were dramatically surprised when it did not pass on the 1972 ballot,” Carpentier said.
A few months after the ballot measure was defeated in Michigan, SCOTUS announced its decision to legalize abortions nationwide.
“Because everyone was so sure, Planned Parenthood at the time was doing everything they could to prepare for that eventuality,” Carpentier said. “So it turned out that once Roe happened in early 1973, the Planned Parenthood affiliate based in Ann Arbor was among the first in the country to offer abortion post-Roe because we were sort of dressed for a party that didn’t happen.”
When the U.S. Supreme Court announced it would take up the Mississippi law in May, Listing, the Right to Life of Michigan president, cited the 49-year-old ballot initiative in urging the court to toss Roe.
“Michigan voters had their say in November 1972, just weeks before Roe v. Wade. A supermajority of voters decided to keep our law. Roe v. Wade overturned our election and took away the human rights from an entire class of human beings,” she said. “We demand they return to their proper constitutional role and follow the will of Michigan voters.”
Michigan has enacted a number of anti-abortion laws in the last few decades, including the so-called “rape insurance” law and a mandatory waiting period.
But two abortion restrictions have failed to get traction in Michigan since 2019.
Right to Life of Michigan was working to ban the rare dilation and evacuation (D&E) abortion procedure, ended its Michigan Values Life petition drive in July 2020 after the Michigan Bureau of Elections (BOE) determined that the petition did not have enough valid signatures.
Genevieve Marnon, the group’s legislative director, said the campaign is “eagerly awaiting the decision of the court” and believes the Michigan’s 1931 abortion ban does not need to be adjusted.
“I don’t believe it needs to be changed whatsoever,” Marnon said. “The law banning all abortions except to save the mother would be the law of the land, and I don’t believe the language needs to be updated.”
The Michigan Heartbeat Coalition, which aimed to ban abortions at the first sign of cardiac activity, usually within the first six to eight weeks, had an even shorter go at restricting access to abortions when the coalition didn’t file its signatures within the required timeframe.
In 2020, 29,669 abortions were performed in Michigan, according to the Michigan Department of Community Health.
That number is significantly lower than when the state first started keeping track in 1982, when 43,512 abortions were performed.
The reason for that isn’t exactly clear, but Carpentier says it may be because of a higher availability of contraceptives in recent years.
In 1971, under former President Richard Nixon, Congress created Title X, the nation’s first federal program dedicated to providing affordable birth control and reproductive health care to low-income individuals. However, in 2019, Trump booted any organizations that offer abortion services from receiving Title X federal funding, which may be part of the rise of abortions Michigan is currently experiencing.
Planned Parenthood made up nearly 70% of the program in Michigan.
“When we were forced out, that combined with the COVID pandemic, our state census under that program went from over 92,000 to less than 20,000 in one year,” Carpentier said. “So I am really curious to see what, frankly, the abortion rate will do as a result of that shift, because it was significant.”
In the case that Roe v. Wade is overturned and Michigan does rely on the abortion ban that is waiting in the books, it could have a greater affect on poor pregnant people and people of color, Carpentier said.
“As with all things health related, Black and Brown people would be most affected and were most affected with Roe,” Carpentier said. “The inability to travel to other places, to secure private physicians, the kinds of avenues that were available to rich white women were not available to women of color, or women who didn't have financial resources. And so, that changed dramatically when Roe happened.”
The quality of health care increased across the board for pregnant people after the 1973 Supreme Court decision, and that could again be a risk for Michiganders if Roe is overturned, Carpentier said.
Women haven’t been rushing to Planned Parenthood to receive contraceptives and birth control in light of the news out of the Supreme Court — yet. But if history repeats itself, like it did when Trump won in 2016, it may happen.
After Trump was elected and before he was inaugurated, Carpentier said that the demand for long-acting reversible contraceptives (LARC), like Intrauterine contraceptives (IUCs) and implants, went up by about 80% in three weeks.
But right now, what’s happening to reproductive health in America “is still really inside baseball,” Carpentier said.
“I wish it weren't, but I think for now it is,” she said. “And in fact, we won't see that kind of reaction, sort of in a really noticeable way, unless it actually comes down and then people are rushing. That's what I believe.”
Originally published July 19, 2021 by Michigan Advance. It is republished here with permission.
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