Michigan Court Ruling on Abortion Consent Laws
On May 13, the Michigan Court of Claims declared that state laws mandating informed consent for abortion infringe upon the right to “reproductive freedom” established in the Michigan Constitution in 2022. This ruling marks the beginning of several lawsuits aimed at dismantling various abortion restrictions under this new constitutional framework.
Following the U.S. Supreme Court’s decision, which stated that the U.S. Constitution doesn’t guarantee a right to abortion, Michigan voters enacted the Reproductive Freedom for All clause. This provision affirms that every “individual” possesses a “fundamental right to reproductive freedom” and restricts any limitations on this right unless they are backed by a compelling state interest, achieved in the least restrictive way possible.
Pro-life advocates had cautioned that this amendment could be more extreme than the Supreme Court’s previous rulings regarding abortion. The Supreme Court recognized a distinction between abortion—ending a pregnancy—and contraception—preventing one. However, the Reproductive Freedom for All clause makes no such differentiation.
While the Supreme Court acknowledged the importance of a state’s interest in protecting fetal life, the Michigan provision overlooks any consideration for the unborn child throughout pregnancy.
Moreover, the Supreme Court understood that minors may not be fully equipped to make informed choices. It upheld laws that required parental involvement in minors’ abortion decisions, but the Reproductive Freedom for All language eliminates any distinction between adults and minors.
The Supreme Court’s Roe v. Wade decision established a right to abortion, but the Michigan provision extends to “all matters relating to pregnancy,” including an ambiguous phrase “but not limited to,” suggesting that the implications may only become clear through future court interpretations.
Recently, the Michigan Court of Claims has invalidated three laws designed to ensure women receive adequate information before deciding on an abortion. In doing so, the court interpreted the term “burden” in this provision as any impact at all.
For instance, a 24-hour waiting period, which is intended to give women time to consider their decision, was deemed a “burden” as it prolongs the time. This clearly adds wait time, but the court ruled that it renders the law unconstitutional.
Similarly, requiring medical professionals to confirm a pregnancy and the child’s gestational age was labeled a “burden,” despite the potential legal ramifications of not doing so. These measures, while vital for medical practice, were found unconstitutional under this new provision.
Additionally, even though expert testimonies agreed that screening women for coercion in abortion decisions is necessary, mandating such screenings conflicts with the Reproductive Freedom for All clause.
The court emphasized a pivotal point: “Under the plain language of the RFFA, the only compelling state interest can be the health of the patient seeking care.” In essence, the state is allowed to do nothing to protect the unborn. The sole focus rests on whether to terminate the pregnancy.
This ruling raises concerns about future challenges to laws designed to prevent the exploitation of minors. The language in the provision suggests that those who assist a minor in seeking an abortion could avoid prosecution, even without parental knowledge. While schools often require parental consent for minor medical issues, informing parents about a daughter’s abortion would be untenable.
Next, laws prohibiting taxpayer funding for abortions may come under scrutiny. Some judicial rulings in various states have already indicated that funding restrictions conflict with equal rights amendments, suggesting that mandating payment for an abortion could be seen as a burden on the decision itself.
Since 2022, states like Ohio have introduced similar radical amendments to their constitutions. As other states prepare for upcoming elections, there is a trend toward adopting these expansive abortion rights provisions. Advocates appear determined to create an environment with virtually no restrictions on abortion, something the Supreme Court didn’t foresee.
