Retraction and Analysis: the New Abortion Regulations in Michigan

In every writer’s life, there is that moment after publication or posting where they become fully aware of all the things they did wrong. In my case, it has been mostly typo-related. But I just hit upon my worst fear: not having all my facts lined up. Eek!!!

After reading a post on Jezebel about Michigan HB 5711,1 I made the impulsive move of jumping on board with the outrage about all the “new and unnecessary” regulations on abortion. And so I made the post entitled, “Another day, another uterine invasion.” I justify my impulsivity this way: after the craptastic bills signed into law regarding abortion and contraception in Arizona and Kansas, I just assumed that all the state legislatures who are already entertaining deranged fantasies about transvaginal probe ultrasounds would be looking for new ways to up the ante.

Over at Motley News, the talented and wonderful Michelle made a couple of terrific posts counting the ways that the Huffington Post and Jezebel got many things wrong.2 Upon reading those pieces, I realized that Gasp! I just passed along that same misinformation!

Thankfully, Michelle has been kind enough to allow me to pass along her discoveries and to set the record straight. First off, as Michelle points out, it’s worth noting that Jezebel is the bigger offender here, and that’s the source that I cited in my previous post, so they will be the focus of my wrath. (Just picture me shaking my fist and growling as I say, “wrath.”)

First of all, it has to be said that Michigan is actually two abortion related laws, HB 5711 and HB 5713. HB 5711 is an update of existing laws pertaining to the regulation of abortion procedure—the mundane stuff pertaining to zoning laws, facility licensing, as well as defining terms like abortion, fetal remains, miscarriage, etc., as well disposing of fetal remains.3 HB 5713 is the bill introducing new restrictions on abortion, but first I want to cover HB 5711.

The first point to debunk is this: “For starters, all abortions after 20 weeks would be criminalized…” Actually, that isn’t mentioned at all in HB 5711. Michelle said she couldn’t find the ban for herself in the bill, and I read it and I couldn’t find it either. On the same topic, Jezebel also opined, “There is a very narrow exception made if the mother’s life is at risk, but simply her health and/or future fertility is not reason enough to allow an abortion.” Actually, the bill maintains existing rules allowing attending physicians to perform abortions if they people the mother’s life is in jeopardy. What seems to be causing confusion is that the bill defines “fetal death” as the death of a 20-week+ fetus, or weighs in at a minimum of 400 grams. The definition also defines a stillbirth as a fetal death.

The next is, “Oh, it’d also make it a crime to coerce a woman into having an abortion.” Like Michelle, I don’t see that as a terrible thing. Under HB 5711, a woman seeking an abortion would have to sign a document declaring that she is pursuing the procedure willfully and lawfully, that she is giving authorization to specific (to-be-named) medical personnel to perform the procedure, that she is not being coerced, that she has been fully informed of the gestational age, that she has received a written description of the procedure to be performed, that she has received a parenting and prenatal care pamphlet, that she has been fully informed if the potential risks and complications of the procedure, that she has been fully informed of the potential risks and complications of continuing the pregnancy, that she has contact information of applicable medical personnel if any complications were to arise as a result of the abortion procedure, that she has been given the opportunity to ask questions of the medical staff and that her questions have been answered adequately, and that the written  information she has received has all been clear and legible. The bill also makes it clear that document is to be available in English, Spanish, and Arabic.

The question I have is how to really enforce the anti-coercion measure. If a woman is being coerced, it’s pretty easy for her to just sign a paper that says, “I am not being coerced,” and proceed with the abortion. In the Jezebel piece, they did say, “make that definition vague enough and you might be able to start prosecuting doctors for being overly enthusiastic in telling patients that it’s totally safe to get an abortion…” The topic of coercion in this bill is dealt with in the context of domestic violence. It’s left rather open-ended, and really left to the medical staff own judgment as to whether they believe a patient is a potential victim. What the bill does lay out is the procedure for medical staff contacting the authorities if they believe that coercion is afoot. The bill also stipulates that the staff must have information on protection from domestic violence available to any patient that requests it, and also to inform any patient they believe may be a victim of domestic violence that this information exists.

The newer parts of the bill also go into detail regarding the illegalities around the coercion of minors, as well as the liability issues regarding doctors having high rates of post-procedural complications. Again, I don’t see anything unreasonable on this at all.

One thing I’m confused about is the 24-hour waiting period. I’m not sure if one already exists in Michigan or if this bill is introducing one. Based on the wording of the bill, I’m under the impression that a waiting period already exists, and I do trust that if I’m wrong someone will tell me. For the record, I think these waiting periods are just their own brand of coercion—that they’re trying to make abortion as inconvenient as possible. And the idea of a “reflection period” is absurd and paternalistic.

Another big thing that Jezebel gets wrong is this: “This lovely bill would also require that health centers that perform more than six abortions in a month be equipped with surgery rooms, even if they don’t do surgical abortions.” What the bill actually stipulates is that “a private practice office  described in this subsectionmust be licensed under this article as a freestanding surgical outpatient facility if that facility publicly advertises outpatient abortion services and performs 6 or more abortions per month.” (Capitalized quotes are the newer parts of the bill.) In other words, it’s a licensing issue, not a change in building codes that, as implied by Jezebel, would require massive renovations.

Their next mistake is: “A doctor needs to be present for medication abortions, and no telemedicine is allowed, so doctors won’t be able to use technology to prescribe medication abortions from afar or even prescribe the morning-after pill.” HB 5711 simply doesn’t deal with that at all, and neither does 5713.

And finally, “And, just for good measure, the bill also puts in place elaborate new regulations for the disposal of fetal remains.” That’s half true. Now keep in mind, when we’re talking about the disposal of fetal remains, we’re talking about biomedical waste—you don’t dump that stuff just anywhere, whether it’s a kidney stone or a fetus. In HB 5711, the patient has the right to determine the disposal of fetal remains—donate them to science, cremation, or burial. However, the bill makes it very clear that the doctor is under no obligation to discuss this with the patient.

I don’t see anything inherently wrong with this; however, the bill does raise a couple of questions that it doesn’t answer. In regard to cremation, the fetal remains must be burned separate from other medical waste; however, the fetal remains can be incinerated en masse. My first thought on that is that it just it just made incinerating medical waste a little more expensive, so who is expected to foot the bill? The doctor? The Patient? The taxpayers? I wish I had an answer.

That brings up to HB 5713 which introduces new abortion legislation under the catchy title, “The Pain-Capable Unborn Child Protection Act.”4 It begins by expanding the definitions of what it means to coerce a pregnant woman into having an abortion, and also specifically lays out that knowingly committing violence against a pregnant woman is, um, more illegal than it was before? Here’s the thing, assault is illegal anyway, but this bill wants to remind us that assaulting pregnant women is also illegal. It also lays out the fines for engaging in any of the aforementioned activities, with potential prison time to be determined by the court. Also, anyone inflicting harm on a pregnant woman causing an end to the pregnancy would be charged with a separate offence, regardless of the stage of the pregnancy. The bill also opens the door for the mother to sue her assailant for wrongful death.

The next substantial part of HB 5713 goes on to describe the possibility that fetal pain exists around 20 weeks of gestation, therefore all abortions after 20 weeks are to be banned outright, due to the belief that this is when fetal pain can be measured. There is some exception regarding medical emergencies pertaining to the saving the life or preserving the health of the mother, but makes clear that this exception does not include emotional/mental distress. There are no exceptions for stillbirth, however, that may fall under the heading of protecting the life of the mother. Anyone violating this statute will be charge with a felony, face 15 years in prison or a $7.5 million fine.

One thing that HB 5713 does that really bothers me is securing inheritance rights for the fetus, providing legal guardianship ad litem prior to birth. In other words, the state can take possession of a pregnant woman’s body. Let me explain: in 2004, Pennsylvania mother of six, Amber Marlowe, was pregnant with her seventh child. When she went into labor, she was told by doctors at Wilkes-Barre General Hospital that she should deliver by a caesarian section. Marlowe decided against the doctors recommendations, and went to another hospital, where she delivered vaginally and complication-free, just like her previous children. In the meantime, Wilkes-Barre General had their lawyers secure a court order to get legal guardianship of Marlowe’s unborn child, which would have resulted in a forced caesarian surgery if she had returned to that hospital.5 There have been a few other similar cases, and it’s worth looking up Pemberton vs. Tallahassee Memorial Regional Center.6

The bill also includes a “wrongful birth” statute, where the parents cannot sue the attending physician for their child being born with disabilities that, if the parents had been informed of prior to birth, would have terminated the pregnancy. I guess this means that doctors would be allowed to withhold information from expecting mothers if they believe that information might result in an abortion. (Again, this is one of those things where I’m not 100% on my interpretation, so if anyone has more expertise to share with me on this topic, go for it.) In all honesty, giving doctors liberty to lie to patients just sounds dangerous on its face, I don’t care if we’re talking appendectomies or abortions.

Bizarrely, HB 5713 also includes some random statutes against cruelty to animals and torture—nothing specific, just general torture and cruelty, with no definitions spelled out. Not that I’m in favor of those things, but it’s like they found their way into the bill from some cut & paste mishap, because then we’re right back into pondering ways to regulate the womb.

In all honesty, this HB 5713 is kind of a half-assed attempt to curb late-term abortions. It’s worth nothing that almost 90% of all abortions take place within the first twelve weeks.7 When we get into later-term abortions, this is when we’re dealing with painful decisions pertaining to fetal anomalies, or the life of the mother is at risk. So the real obligation of the pro-life movement, it would seem, is to make an already risky and painful decision even more risky and painful. When there are people running amok who would use legislation to dictate lifestyle, the best thing we can do is arm ourselves with knowledge, in other words, getting our facts straight before we shoot our mouths off. If we don’t, they’ll only use our distortions against us later.

  1. Jezebel: Michigan’s Extreme Anti-Abortion Bill Leads the Nation in Batshittery
  2. Motley News & Photos: Michigan’s Abortion HB 5711 is NOT as bad as Jezebel and HuffPo make it out to be
  3. HB 5711:
  4. HB 5713:
  5. MSNBC: What are mothers’ rights during childbirth?:
  6. Wikipedia: Pemberton vs. Tallahassee Memorial Regional Center:
  7. Guttmacher Insititute: Facts on Induced Abortion in the United States:

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