Published in Health Care
Gov. Gretchen Whitmer Gov. Gretchen Whitmer COURTESY PHOTO

Whitmer cites BHSH, Kent Co. prosecutor in calling for legal certainty around abortion

BY ANDY BALASKOVITZ and MARK SANCHEZ Monday, June 27, 2022 04:26pm

Michigan Gov. Gretchen Whitmer has renewed her request for the Michigan Supreme Court to immediately consider her lawsuit to determine whether abortion is protected under the state’s constitution.

In a formal question filed with the Michigan Supreme Court today, Whitmer and the state Attorney General’s office cited BHSH System’s backtracking over the weekend in how it was interpreting the U.S. Supreme Court’s ruling on Friday that overturned Roe v. Wade.

Following the high court’s ruling, attention turned to a 1931 law in Michigan that criminalized abortion, even in cases of rape and incest. BHSH’s top executive told staff in a Friday email that it would follow the 1931 law, followed by a notice that it would perform the procedure if the mother’s life was at risk. By Saturday night, BHSH officials said the health system would reinstate its original policy of providing abortion services when “medically necessary.”

A state Court of Claims judge has placed an injunction on Michigan’s 1931 law in a case brought by Planned Parenthood of Michigan. Top state officials and some health systems have said the injunction still permits abortion procedures in Michigan.

Whitmer’s appeal to the Michigan Supreme Court cited the BHSH scenario, and also noted that local prosecutors in Kent and Jackson counties have claimed they are not bound by the current injunction.

“The Governor firmly disagrees with the positions espoused by the two prosecutors. Contrary to their apparent belief, they are explicitly bound by the Court of Claims order,” Deputy Attorney General Christina Grossi wrote on Whitmer’s behalf.

“But as BHSH’s rapid changes in policy demonstrate, these intervening developments have sown confusion about abortion access in Michigan and underscore the need for this Court’s immediate intervention,” Grossi added. “The Governor fully agrees with BHSH on one point: the courts should ‘bring clarity as quickly as possible.’ And only this Court has the power to fully and finally resolve whether Michigan’s criminal abortion ban can continue to be enforced post-Dobbs.”

Uncertainty abounds

Attorney General Dana Nessel also has indicated that she would not enforce Michigan’s 1931 law banning most abortions in the state.

“I cannot join with them in this position,” Kent County Prosecutor Chris Becker said in a statement.

“I do not believe it proper for me to simply ignore a law, any law, that was passed by the Michigan Legislature and signed by the Governor,” Becker added. “In our system of government, the legislature passes a law, and the executive branch, including prosecutors, enforces those laws. I have always held it would be improper for me to pick and choose the laws I wish to enforce that have been validly passed and signed. I will not start now.”

Becker also noted that Michigan’s law only allows charges to be filed against a doctor performing an abortion, not a woman seeking or getting an abortion. He said he will await court rulings in cases challenging the 1931 to “guide my actions.”

“I will abide by whatever laws are passed by the legislature or by voter initiative down the road. That is the proper role of a prosecutor. At this time, however, there is a validly passed statute which has been upheld by the Court of Appeals in the past and I will not turn a blind eye and ignore it. To do so in my opinion would be improper,” Becker said.

In an email today to health care professionals across the state, the Michigan Department of Licencing and Regulatory Affairs said that “abortion remains legal in Michigan because of the current injunction that prohibits enforcement of the 1931 law.”

“We understand that you may have some concerns about how continuing to provide medical and surgical services to women seeking abortion may impact your professional license. The Department of Licensing and Regulatory Affairs will not take any action against any health professionals for providing legal abortion services while the current injunction remains in place,” LARA’s Bureau of Professional Licensing wrote.

The directive illustrates “how much fear and uncertainty is there and will impact physicians and teams’ decision-making and care provision,” said Dr. Lisa Harris, a professor of obstetrics and gynecology at the University of Michigan and a member of the Committee to Protect Health Care.

“So much uncertainty is now going to present itself in care,” Harris said, noting the language in the 1931 law stating that anything done to induce a miscarriage is illegal.

The Committee to Protect Health Care — a coalition of physicians — supports Whitmer’s move to ask the Michigan Supreme Court to immediately consider her lawsuit and plans to join the case.

“Our organization absolutely supports this lawsuit and we are working with counsel to file an Amicus brief in support and are hopeful it goes through,” Dr. Rob Davidson, an emergency medicine physician in West Michigan and executive director of the Committee to Protect Health Care, said today during a media briefing.

Confusion over the status of the 1931 state law can put physicians in a difficult position when treating women experiencing a complication that threatens her health or life.

“Politicians shouldn’t be telling doctors how to take care of women dealing with medical emergencies or other crises,” Dr. Melissa Bayne, a Fremont OB-GYN, said in the media briefing hosted by the Committee to Protect Health Care. “We don’t want politicians banning abortions or imposing medically unnecesary restrictions on any health care, including abortion care. We trust women, whether they’re our patients, our family members, our friends and our neighbors, to make the decisions that are best for them and their families and their futures.”

As well, the Committee to Protect Health Care supports a statewide petition drive for a ballot initiative, Reproductive Freedon for All, that would protect abortion access within the first 24 weeks of pregnancy, in cases of medical necessity, “and in cases of horrible crimes like rape,” Davidson said.

“To be clear, abortion is still legal at this time in Michigan, but it’s critically important that we act here in Michigan to protect the current rights to abortion,” Davidson said. “We have an opportunity to pass a common sense, middle-ground law to protect current abortion access, rather than have the government decide for us.”

Michigan Medicine is among the health systems in the state interpreting the Court of Claims’ injunction as allowing abortions to continue.

“Michigan Medicine remains committed to providing high quality, safe reproductive care for patients, across all their reproductive health needs. This includes abortion care, which remains legal in Michigan. A 1931 law exists that banned abortion in Michigan, but a recent Michigan Court of Claims order has temporarily blocked enforcement of that ban; the preliminary injunction in the Court of Claims case means that the Dobbs decision does not alter the policies or practices at our hospitals,” Michigan Medicine Director of Public Relations Mary Masson said in an emailed statement.

The Ann Arbor-based health system said University of Michigan Health-West, a separate but affiliated unit based in Grand Rapids, will continue to offer abortion care in “emergent situations.”

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