Q: Can you explain the current state of Michigan’s abortion laws? In addition to the overturning of Roe v. Wade, I have been reading about more than one Michigan case involving injunctions. Is abortion now legal in Michigan?
In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overruled Roe v. Wade and held that there is no longer a federal constitutional right to an abortion. Abortion procedures are now regulated by state law. State legislatures are free to enact, repeal or revise existing abortion laws or to enact new abortion laws. State abortion laws (including the Michigan laws described below) that were unenforceable prior to the overturning of Roe are now enforceable (absent court orders preventing their enforcement).
Michigan law (MCL 750.14) has criminalized abortion procedures generally since the 1800s. The only exception included is applicable when the abortion procedure is necessary to preserve the life of the mother. This law is no longer dormant. Abortion procedures in Michigan are illegal. A violation of MCL 750.14 is a felony, with a potential maximum sentence of 4 years. If the violation results in the death of the mother, the potential maximum sentence increases to 15 years.
Litigation on going at the time this column was written prevents the enforcement of MCL 750.14 in 13 of the 83 Michigan counties (Emmet, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw, and Wayne). An injunction preventing the enforcement of MCL 750.14 was issued by the Michigan Court of Claims in Planned Parenthood of Michigan v. Atty. Gen. of the State of Michigan. That injunction is currently on appeal. On August 1, 2022, the Court of Appeals issued an order providing that this injunction does not apply to Michigan’s county prosecutors. On the same day, in Gretchen Whitmer v. Linderman, et.al., the Oakland County Circuit Court issued a temporary restraining order preventing enforcement of MCL 750.14 by the prosecutors in the 13 counties who have stated they will enforce MCL 750.14.
Therefore, abortion procedures are illegal in Michigan but until the Whitmer temporary restraining order is terminated or a county prosecutor not subject to it changes his/her position, MCL 750.14 is not being enforced and physicians performing abortion procedures who comply with Michigan’s other laws regulating abortion will not be prosecuted. The situation is turbulent. Developments in the current litigation in addition to the outcome of a pending ballot initiative, the discretion of county prosecutors and legislative action (Michigan or federal) may change the enforceability of MCL 750.14 and other Michigan laws at any time.
Two other Michigan statutes criminalizing certain abortion procedures are not subject to any court order preventing their enforcement. MCL 750.15 criminalizes the advertising or selling of any “pill, powder, drugs or combination of drugs, designed expressly for the use” of procuring an abortion except when the substance is sold by a prescription written by a physician practicing in the city, village, or township in which the sale is made and the seller of the substance registers the name of the purchaser, the date of the sale, the kind and quantity of the substance sold, and the name of the physician prescribing the substance. A violation of MCL 750.15 is a misdemeanor with a potential maximum sentence of 1 year. MCL 750.90h criminalizes the performance of partial birth abortions except when performed to save the life of the mother. A violation of MCL 750.90h is a felony with a potential maximum sentence of 2 years or a fine of not more than $50,000.00, or both.
In addition to the laws described above, there are several other Michigan laws regulating abortion procedures. These laws include notice, consent and reporting requirements, immunity when refusing to perform an abortion, etc. These laws all remain enforceable.