The NewStandard ceased publishing on April 27, 2007.

Pro-Choice Groups Avert 'Vague' Michigan Abortion Ban, For Now

by Jessica Azulay

A ban affecting at least some and perhaps most abortion procedures performed in the state was postponed by challenges to what critics consider dangerously ambiguous language seeking to redefine “personhood.”

Mar. 17, 2005 – A lawsuit brought by reproductive rights organizations in Michigan succeeded Monday in temporarily blocking a legislated abortion ban, which had been scheduled to take affect at the end of the month. The bill has come under fire from abortion rights groups who contend that it could result in a "virtual ban on abortion" in Michigan.

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The Legal Birth Definition Act takes a different approach to banning abortions than most measures of its kind. Instead of seeking to outlaw a particular practice, the bill seeks to redefine a "legally born person," and then criminalizes practices that harm any embryo or fetus that is "born" as defined in the act.

"This law dangerously interferes with medical practice, threatening women’s ability to obtain even a first-trimester abortion and, in some instances, preventing doctors from treating miscarriages," said Reverend Mark Pawlowski, CEO of Planned Parenthood of South Central Michigan, in a press statement. "We are relieved that this extreme measure will not go into effect as scheduled."

The Center for Reproductive Rights, the Planned Parenthood Federation of America and the American Civil Liberties Union filed the legal challenge to the bill at the beginning of March on behalf of several Michigan-based clinics and physicians. The complaint lists concerns over the bill’s language and suggests that, if enacted, the law could be applied to most common abortion procedures.

The organizations also allege that the legislation’s exceptions to protect the mother’s health and life are unconstitutionally narrow. The result, they say, will be that women’s safety will be endangered and many abortions -- which have been declared a constitutional right by the US Supreme Court -- will become unavailable within the state.

In order to gain more time to respond to the complaint, Michigan Attorney General Mike Cox agreed to a temporary injunction against the law, which the legislature had scheduled to take affect on March 30.

The Act reads, in part: "[W]hen any portion of a human being has been vaginally delivered outside his or her mother’s body, that portion of the body can only be described as born and the state has a rational basis for defining that human being as born and as a legal person" having all corresponding legal rights.

The Act defines as "alive" fetuses or embryos that exhibit either a detectable heartbeat, evidence of breathing, evidence of spontaneous movement, or umbilical cord pulsation. It makes no attempt to differentiate between fetuses that could viably live outside of a woman’s womb and those that cannot.

Anti-abortion activists consider the procedure that was the primary target of the bill to be particularly immoral. Intact dilation and extraction, or "partial birth abortion" as it is termed by anti-abortion groups, is a rare procedure in which a fetus is brought partially out of the uterus and then killed when a physician punctures its brain so that its crushed head can pass through the birth canal.

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.

In spite of the civil liberties and health concerns expressed by abortion rights advocates, the Michigan abortion ban enjoys substantial public support in the state. When Michigan Governor Jennifer Granholm, a Democrat, vetoed the legislation in 2003, anti-abortion groups mobilized hundreds of thousands of people to sign petitions allowing the legislature to override the veto.

Nevertheless, reproductive rights organizations are confident that, like two previous Michigan attempts to ban abortion, this latest attempt will be overturned in the courts on constitutional grounds.

"Michigan federal courts have already twice struck down dangerous abortion bans," Linda Rosenthal, a Center for Reproductive Rights attorney working on the case, said in a press statement. "We are confident that when the court considers the ban in this case, it will find it unconstitutional and permanently block its enforcement."

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The NewStandard ceased publishing on April 27, 2007.

Jessica Azulay is a staff journalist.

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