A 90-year-old dormant law that effectively criminalizes abortion in Michigan is poised to be a key policy debate in its statehouse next year, as Democrats there and across the United States try to secure abortion access in an increasingly complicated political and legal landscape.
Michigan Democrats from both legislative chambers introduced the Reproductive Health Act this week as part of a package of bills. If enacted, the legislation would repeal a 1931 law that criminalizes abortion in the state. The statute hasn’t been in effect in decades, after landmark Supreme Court decisions like Roe v. Wade affirmed a person’s right to an abortion. But a more conservative high court and upcoming rulings could make the future of abortion access increasingly contingent on individual states.
Gov. Gretchen Whitmer, a Democrat, in September expressed support for repealing the law through a separate stand-alone bill. The Republican-controlled legislature, however, has not.
“We will not be supporting any such repeal,” Senate Majority Leader Mike Shirkey said in a statement, according to the Associated Press. “The primary charge of any government or government official is to protect the life of the innocent. Michigan Senate Republicans will not waver from this fundamental duty to protect the sanctity of life.”
The main bill would not only repeal the state’s abortion criminalization law, but also remove regulations that require facilities that provide abortions to be licensed as freestanding surgical outpatient facilities. The legislation would also lift Michigan’s mandated 24-hour waiting period for an abortion and lift a ban on private insurance coverage for abortions.
“We trust that the best person to make the right decision about their reproductive health care is that person and their doctor,” House Minority Leader Donna Lasinski said during a press conference on Wednesday. “We must continue to fight and protect personal health care choice.”
Dr. Sarah Wallett of Planned Parenthood of Michigan, who joined the news conference, described the impact of existing state statutes on patients who visit her. She said many experience hardship in traveling long distances, arranging child care and facing unnecessary costs.
“The state of abortion access in Michigan is already dire, especially for our most marginalized communities,” Wallett said. “We have decades of abortion restrictions on the books that serve no medical or public health purpose. They are only designed to make life harder for Michiganders seeking an abortion. And it’s only getting worse.”
The 1931 law in particular could create a hodgepodge of rules in Michigan, warned Rep. Laurie Pohutsky, chair of the Michigan Progressive Women’s Caucus that helped introduce the legislation. She said the law, as written, has contradictory language. It would make it a felony to provide drugs or instruments that lead to a miscarriage. Another section states that someone who sells drugs for an abortion faces a misdemeanor. Additional language implies such drugs could be sold by prescription.
Attorney General Dana Nessel, a Democrat, has said that she would not prosecute related cases if Roe v. Wade is overturned.
“There are some county-level prosecutors who have said the same,” Pohutsky said. “But that’s by no means going to be a uniform policy across the state. So it is a risk.”
Pohutsky added that she’s also aware of the reality of the bill’s chances in the legislature this term, which runs through the end of 2022. She hopes it can also bring constituents to the ballot box next year to vote for Democrats to flip the statehouse.
Lawmakers in several statehouses are expected to file a range of related policies as they consider a future in which Roe v. Wade is overturned or weakened.
“You are seeing a wave of legislators who are ramping up their commitment to shoring up Roe in their states,” said Jennifer Driver, senior director of reproductive rights at the State Innovation Exchange (SiX), an organization that works with lawmakers to pass what they view as progressive policies. “Knowing that the Supreme Court could go against our favor, state legislators have had an increased commitment to figure out how they support or secure abortion access in their states.”
That may look different depending on the state. In Illinois, where the Democratic-controlled legislature helped pass a 2019 state law that codified a “fundamental right” to an abortion, lawmakers last month approved legislation that would repeal a 1995 law requiring parents or guardians to be notified if a minor seeks an abortion.
Driver told The 19th that she has been in communication with lawmakers in Colorado, Georgia and Washington state who plan to introduce bills soon that would expand abortion rights.
Rep. Park Cannon, a Democrat in the Republican-controlled Georgia legislature, told The 19th that she has plans to help file a bill in several weeks that, as she described it, would repeal certain abortion restrictions and address “gray areas” in the law exacerbated by the pandemic. Republicans there passed legislation in 2019 that banned abortions after six weeks of pregnancy, but it is not in effect amid litigation.
“It’s been something that the coalition of reproductive health rights and justice organizations have been working on for over a year,” she said. “We have done focus groups and informative sessions all across the state of Georgia. And the bill itself is our desired rewriting of abortion access in Georgia.”
Statehouses were already the center of abortion policy, as Republicans in 2021 led efforts to introduce a record number of abortion restrictions, including a Texas law that bans most abortions in the state after six weeks of pregnancy and creates a system for private citizens to file suit against someone they believe has aided or abetted a person receiving an abortion after six weeks. The law remains in effect, and Republican lawmakers in Ohio and Florida have filed similar bills.
“The sanctity of human life, born and preborn, must be preserved in Ohio,” said Republican Rep. Jena Powell, according to Cleveland.com, in a statement when the related bill was filed. She added that the measure, “ is about protecting our fundamental, constitutional right to be born and live. Abortion kills children, scars families, and harms women. We can and must do better.”
Driver said it’s critical that Democrats file proactive legislation that can get more constituents involved in policy debates. She noted a majority of Americans say abortion should be legal in all or most cases.
“There’s power in even introducing legislation to start the conversation, so that the everyday person in the state understands what’s at stake,” she said.
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