With the U.S. Supreme Court ruling in a 6-3 decision that Roe v. Wade no longer guarantees women a right to an abortion, states have been left to their own devices when it comes to trudging a path forward on the topic.
For some states, that means there are no laws on the books. For Michigan, that means reverting to a decades-old precedent which all but completely bans the procedure and offers no exceptions in the case of rape or incest.
But Act 328 of 1931, the vehicle to make this possible, is currently unenforceable due to a preliminary injunction issued as part of the Planned Parenthood v. Attorney General case. The nonprofit is arguing in the Court of Claims that the nearly 100-year-old law is unconstitutional under Michigan’s constitution and would violate a person’s civil rights if enforced.
At the same time, Governor Gretchen Whitmer has initiated her own lawsuit on the issue which has gone directly to the state Supreme Court for consideration. She earlier this year sued 13 county prosecutors in the Oakland County Circuit Court hoping for a quicker resolution to overturning the ban, citing that the 30s-era law violates both the due process and equal protection clauses of the Michigan Constitution.
RELATED: Republicans step in to defend Michigan’s abortion ban in court
Each suit is still ongoing, meaning that – for the moment – abortion is still legal throughout Michigan. But that’s dependent on whether the cases rule in favor of either the governor or Planned Parenthood.
And if that doesn’t happen, then the final say on abortion in Michigan will become the 1931 act.
A two-part law, the first portion of the 1931 statute deals with inducing a miscarriage while the second deals with inducing an abortion via medicine. Under Michigan Complied Law 750.14, it would constitute a felony should a person willfully administer “drugs, etc., with intent to procure miscarriage” to a pregnant woman unless necessary “to preserve the life of such woman.”
Should that procedure induce an abortion, it would be considered a felony; if it causes the death of that woman, it would then be considered felony manslaughter. There is also a caveat in the law: “In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.”
It’s believed that would mean should a case be brought against a woman for having an abortion, it would be on the doctor – not the person bringing the suit – to prove why and how a woman’s abortion was medically necessary to save her life.
Or, at least, that’s one interpretation of the wording said Leah Litman, an assistant professor of law at the University of Michigan. Due to the lack of caselaw regarding abortion between when this law was again codified and when Roe was overturned, there are virtually no precedents set in this arena for how to handle suits of this nature.
That’s made even more pertinent in the second part of the 1931 law (MCL 750.15), which would make it a misdemeanor to sell, advertise, publish or “publicly expose for sale” abortion-inducing drugs. The law classifies that as “any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion.”
Abortion-inducing drugs could still be provided by a physician, though it would have to be done via prescription. However, that doctor’s name and address would need to be recorded by the pharmacists selling the drugs, along with the kind and quantity of medicine sold, the date of sale and the name of the purchaser.
The law does not expressly outline what is done with that information, only that it shall be recorded by a pharmacist “in a book provided for that purpose.”
It’s because of vague statements like that within statute, Litman said, that there would almost certainly be a chilling effect on doctors willing to provide abortions – even if it would save the life of a mother – out of fear this law could be weaponized against them.
“It’s very difficult for doctors to plan care around this uncertain law,” she said.
That’s somewhat due to prosecutorial discretion, Litman added, which could lead to some choosing to enforce the ban differently (or not at all) than in other counties. Such situations are already unfolding in areas like in the Wayne and Oakland counties, where each of their prosecutors have signaled they would not pursue enforcement of the 1931 abortion ban in their own jurisdictions.
RELATED: Michigan AG says she won’t enforce state’s ‘Draconian’ 1931 abortion law
Washtenaw County Prosecutor Eli Savit credited the vagueness of the law to the statute being a recodification of an 1840′s law — meaning that with the progression in medicine and technology made since then, there would be no way the statute could account for the nuances in healthcare today.
Coupled with lack of caselaw, like Litman said, it presents a massive hurtle in potentially implementing the 1931 ban as part of current statute.
“Typically, when you’re talking about cases and caselaw, things develop overtime on a case-by-case basis through the courts … but because abortion has been recognized as a constitutional right for the last half a century the caselaw hasn’t developed at all,” he said.
Savit is among those handful of county prosecutors who have openly stated they would not prosecute someone for getting an abortion within their jurisdiction. That wouldn’t necessarily mean, however, that if a women sought an abortion in Savit’s county – despite being from a county where its prosecutor was bringing charges for having an abortion – she would automatically be protected from legal ramifications.
If her home county prosecutor wished to bring charges against her for seeking an abortion, Litman said the question then becomes if she could be charged with conspiracy. Again, it’s largely because there is so much of a grey area that there are more questions than answers.
“As with many criminal laws, discretion is given to prosecutors … that’s not atypical in our legal system,” Litman said. “What is atypical is that this is the criminalization of healthcare.”
MORE FROM MLIVE:
The state needs ‘Pure Michigan’ magic to revive its shrinking talent pool
Michigan false electors served federal subpoenas as Jan. 6 probe intensifies
Genesee County Clerk’s Office is behind on ballot approval process for Aug. 2 primaries
Ted Nugent, rocker and member of far-right Oath Keepers, endorses Kevin Rinke
Accused Oxford High School shooter pursues GED from behind bars in Michigan
"still" - Google News
June 24, 2022 at 09:29PM
https://ift.tt/D8OZet0
Abortion is still legal in Michigan. It might not stay that way. - MLive.com
"still" - Google News
https://ift.tt/yf5Jpzb
https://ift.tt/2lNRJKD
Bagikan Berita Ini
0 Response to "Abortion is still legal in Michigan. It might not stay that way. - MLive.com"
Post a Comment