A Michigan law on the books since 1931 makes performing an abortion a felony offense. It is a felony punishable by up to 4 years in prison (MCL 750.14) to perform an abortion in the first 16-18 (or so) weeks of a pregnancy and any abortion performed after that time is considered manslaughter, a homicide punishable by up to 15 years (MCL 750.323) in prison. The only exception under these statutes is that abortions may be performed if necessary to preserve the life of the mother. There are no exceptions for rape, incest or if there are concerns about the health of the child once born.
After Roe v. Wade was decided in 1973, Michigan stopped enforcing some of the criminal laws against performing abortions because Roe made such laws unconstitutional. Instead, Michigan passed a number of laws over time placing limitations on abortion access such as:
Parental consent for minors, MCL 722.901 et. seq., Eff. 3.28.1991
Informed consent – counseling and waiting period, MCL 333.17014, .17015, .17515, Eff. 4.1.1994
Record keeping – report to MDHHS by physician, MCL 333.2835, Eff. 3.10.2000
Refusal to perform – immunity from liability, MCL 333.20181, Eff.
Partial birth abortion ban, MCL 333.17016, .17516, Eff. 3.31.1997 (see also MCL 750.90h criminalizing partial birth abortions, Eff. 1.1.2012)
No Medicaid funding, MCL 400.1 et. seq., Eff. 1988.
But the total ban on early term abortions has not been enforceable.
With the overturning of Roe v. Wade appearing to be imminent, we get asked often about how that will affect Michiganders. The answer is that if Roe is overturned, the 1931 laws that make all abortions except those necessary to preserve the life of the mother are illegal and anyone who performs them can be prosecuted for a felony. There have been announcements made by some county prosecutors, and the state Attorney General, on whether they will or will not be enforcing the law in their jurisdictions. But the 1931 laws will be enforceable.
Foreseeing this, Planned Parenthood of Michigan sought an injunction to prohibit enforcement of the 1931 abortion law. In an opinion issued by the Court of Claims on May 17, 2022, Judge Elizabeth Gleicher presiding, a preliminary injunction against enforcement of MCL 750.14 was issued. The basic rationale was that even if Roe is overturned, the abortion ban might be unconstitutional under Michigan law and therefore, the law should not be enforced until that issue can be fully litigated. Anti-abortion groups quickly filed suit in the Michigan Court of Appeals to overrule the Court of Claims injunction. That litigation is ongoing.
Many Michiganders do not realize that Michigan has a total abortion ban because we have not had to consider its enforcement for last 50 years. All that could change very quickly and criminal defense lawyers at Willey & Chamberlain will be keeping up to date on these developments.
Call us at (616) 458-2212.