Roe rolls on in Michigan and beyond

Judge Sima Patel of the Michigan Court of Claims, on May 13th, struck down three abortion-related provisions in Michigan law. The provisions required that a woman contemplating abortion be provided with the ultrasound image of her child, set a 24-hour waiting period before obtaining an abortion, and limited performing abortions to doctors. It lets stand a provision requiring the abortionist to certify that the woman has not been coerced into procuring an abortion.

Northland Family Planning Center v. Michigan is the latest installment of the pro-abortionists’ effort to invent state constitutional “rights” to abortion in the wake of the U.S. Supreme Court’s Dobbs decision. All these limits would have been valid under the federal Constitution pre-Dobbs.

Within five months of Dobbs, however, a ballot initiative was adopted that enjoyed the support of the Wolverine State’s all-girl senior Executive Branch: Governor Gretchen Whitmer, Secretary of State Jocelyn Benson, and Attorney General Dana Nessel. As in other states, the initiative was hawked as “codifying Roe v. Wade into law” while gliding over the fact that it meant codifying abortion-on-demand for all reasons before birth into law. We are now seeing their consequences as lawsuits play out in state courts to eliminate even the most commonsense abortion restrictions. State judiciaries have become the new venue for continuing the Roe approach to abortion jurisprudence. (Many of these amendments also go further than abortion, ensconcing gender ideology into state constitutions, but that’s not the subject of this essay.)

These amendments will strike down virtually any restriction on “choice.” The only reason the anti-coercion provision of Michigan law survived was that it involved ensuring “choice.”

Roe paid lip service to a state’s interest in the “potential life” of an unborn child, but that interest never was strong enough in federal jurisprudence to prevail over a claim that an abortion was needed to protect a woman’s “life or health” (the definition of “health” being anything and everything). Most of these post-Dobbs state constitutional amendments imitate Roe by inserting window dressing about “viability” and similar interests where “potential life” might be valued. But they also immediately include language eviscerating the window dressing by insisting it cannot be invoked when a woman’s “health” (always left ambiguous) is implicated.

The provisions struck down

States adopted waiting periods for abortions because of the finality of an abortion. Many women facing an unplanned pregnancy are panicked into abortion as the “solution” to their dilemma. Many often face explicit or subtle parental or their co-parent’s pressure to abort. While these pressures might not reach the legal level of “coercion” Judge Patel allowed to stand, they are not insignificant, particularly when women are unaware of alternatives that would let them keep their baby and when blue states like Michigan often campaign against crisis pregnancy centers that offer choices other than abortion.

Faced with the suddenness of many discoveries of pregnancy, the lack of knowledge of alternatives, pressures to “resolve” the “problem,” and the finality (especially for the baby) of abortion, states imposed a “think-about-it” period.

Those waiting periods were often paired with efforts to make women aware of what abortion entails, usually by providing them with an ultrasound of their baby. States justified that requirement by invoking a cardinal principle of modern bioethics: informed consent. “Informed consent” means that a patient is aware of all relevant facts and choices about a course of action. Good medical care before abortion presupposes an ultrasound anyway to be sure of the gestational age of the fetus, which (a) determines abortion procedures and (b) is often necessary to comply with state restrictions. (This is another area where abortionists play fast-and-loose: the Michigan amendment pays lip service to restricting post-viability abortions, but then says the “health care professional’s” judgment decides viability, without necessary reference to objective criteria verifiable by anybody else.)

In some states, the provision of ultrasounds was paired with information about the biological state of development of the fetus at that gestational age.

Abortionists have always railed against ultrasounds because they often have the effect of changing a woman’s mind about going through with an abortion. That’s why some don’t even want to bother with ultrasounds, and those that do often move the ultrasound screen so the mother doesn’t see her baby moving. They also object to communicating scientific information about the state of fetal development at that moment. They claim that requiring this is “coerced speech” and showing women their moving baby is “distressing”. In truth, they abridge informed consent, providing only so much “information” as is necessary to keep their paying patient on the table.

Finally, there is a strong push by abortionists to farm out abortion to all sorts of other “health care professionals” (the substitute term the Michigan constitutional amendment employed). But many OB-GYNs want nothing to do with abortion, and those still doing it are aging. Indeed, in many states, non-OB-GYNs have routinely performed abortions: Kermit Gosnell, Philadelphia’s convicted abortionist (about whom the “choice” community maintains a vow of omertà) was not even an OB-GYN, just like many of the “choice” community heroes.

Even here, however, the number of physicians providing abortions is insufficient, so the pro-abortion community has pushed for states to permit non-physicians to perform abortions. Defense of Michigan’s restriction of abortion to physicians was based on the argument that, even under the 2022 amendment, the state had an interest in restricting such procedures to the best medically qualified personnel. Judge Patel rejected that claim, which arguably was already prepared by the language of the amendment itself.

One should also note that, although not an issue in the Michigan case, abortionists have also always opposed requirements that physicians have admitting privileges at a local hospital in the event something goes wrong. With the proliferation of do-it-yourself medication abortion (i.e., self-induced miscarriage), particularly when mailed from another state after perhaps a “telemedicine” visit, the likelihood of such emergency complications will increase.

Abortionists, of course, reject all these requirements as “TRAP” (targeted restrictions on abortion providers) laws that are unnecessary obstacles impeding a woman’s “choice”—the essence of the argument in the Michigan case. That argument stands, however, on a selective reading of “informed consent” and an extraordinarily Pollyanna view of the possible complications abortion poses, without saying anything about its psychological impact, particularly long-term.

Apart from these medical implications, of course, there is the problem of “democratic choice.” The latter was an argument against Roe. Roe abridged democratic resolution of abortion policy by imposing an absolutist, one-size-fits-all “solution” to its status, insensitive to debate over appropriate nuances of the shape that policy might take. Consider that the Michigan Legislature in 2023–after the adoption of the state constitutional amendment–rejected repeal of the waiting period and informed consent provisions.

Consider, too, that there is polling evidence to suggest a strong majority of Michigan voters considered the waiting period reasonable. In both instances, that democratic determination is rendered nugatory by a bludgeoning amendment (which Gretchen Whitmer continues to cheer) invalidating even common-sense limits on abortion.

Lessons and language

First, those states that were driven into “codifying Roe” will discover that the extremist logic driving Roe for fifty years will now be transferred to their state court systems. That means their freedom of action will be constrained by self-imposed limits.

Secondly, that self-deprivation of freedom of action is often the result of talking in euphemistic language, which evades the clear meaning of what its advocates intend to accomplish. Virginia is the next ground zero in the abortion juggernaut. Consider this May 14th tweet from Democratic gubernatorial nominee Abigail Spanberger:

Access to contraception and birth control is fundamental to women’s health and safety. As the next Governor of Virginia, I’ll focus on lowering healthcare costs, defending access to affordable coverage, and protecting women’s access to reproductive healthcare.

Let’s “deconstruct” it:

• Nowhere does the “a” word appear, lulling people into a false sense of security or vincible ignorance;
• Nobody in Virginia (or elsewhere, for that matter) is proposing legal restrictions on contraception, even though abortionists have made that a bogeyman since Dobbs;
• “access to reproductive healthcare” means “abortion-on-demand-throughout-pregnancy-through birth.” (For previous Democratic Governor Ralph Northam, it even meant a little after birth for sick neonates). Yes, as per the amendment Democrats have already forced once through the Virginia Legislature, there is the window dressing language about “viability” – and the immediate “health” exception negating it.
• And “access to affordable coverage” probably means “getting the state to pay for abortions through state Medicaid money.”

You have to talk like Spanberger to allay people’s awareness of what you want to do, especially in a purplish state like Virginia. Once you do, they’re stuck with a fait accompli, respect for which is part of “rule of law” and “democratic norms.”

Michigan’s Court of Claims is an inferior court, and so, in theory, Patel’s ruling may be appealable to the state Supreme Court. As Dana Nessel is your typical Democratic attorney general, i.e., derelict in her duties by refusing to defend laws she doesn’t like, the case may advance with support from the Republican-controlled House of Representatives. While we need to make the case for reasonable regulation of abortion (e.g., restricting it to physicians) even under these ideological state amendments, I am not sanguine about outcomes.