(Source: MIRS.news, Published 04/07/23) Following the passage of Proposal 3 of 2022, which made abortion access a right under the Michigan constitution, state bureaucrats and policy makers can still regulate abortion after "fetal viability."
But what qualifies as post-fetal viability?
"Simply put, viability means that a fetus can reasonably survive outside of the womb without any extraordinary measures," said Dr. Omari Young, a Flint-based OB-GYN who's involved with the Committee to Protect Health Care. "But on a conservative measure, in the context of the state of Michigan, usually we consider viability around 24 weeks of gestational age . . . and again, that number continues to evolve."
MIRS spoke to Young Friday morning, exploring what abortion-related regulations remain intact in Michigan – and what could still be constitutionally developed – following the success of Proposal 3 of 2022, which more than 2.48 million voters approved in the last general election.
Young directed MIRS to the "Informed Consent for Abortion" page on the state of Michigan's website. It highlighted how patients in Michigan must still undergo a 24-hour waiting period, and that a pre-screening must occur to ensure the patient was not being coerced to have an abortion against her will. The woman seeking an abortion must still complete and present an "informed consent confirmation form" to comply with state law.
"When we use our defining lines in the state of Michigan, we don't have an exact gestational age cutoff -- you just use the term 'viability,'" Young said. "There's specific language in place regarding providing or counseling regarding abortion care after viability…and again, that's a detailed discussion between the patient, their obstetrician and gynecologist…usually a high-risk OB-GYN is involved in this discussion, which is a maternal fetal medicine specialist, and then also a neonatologist."
A neonatologist refers to a pediatrician especially treating newborns with certain injuries or diseases necessitating special care.
Planned Parenthood of Michigan informed MIRS the language of Proposal 3 of 2022 allows for physicians to determine fetal viability on "a case-by-case basis," with unique medical circumstances and diagnosis being accounted for. The organization explained while the Legislature could produce a post-viability ban, "physicians would continue to hold the authority to determine viability in each individual case."
Due to the passage of the constitutional amendment, one could observe that pro-life lawmakers have been tasked with updating their strategy around abortion-related policies. Proposing something like a "heartbeat bill," where the timeline for legal abortion is capped at six weeks of a pregnancy, would now be unconstitutional in Michigan.
However, Republican legislators in Michigan have introduced items like the creation of a "parental rights restoration act," charging an abortion provider with a 4-year, $10,000 felony if they served a minor without parental consent. Another proposal would additionally ramp up Michigan's punishment against an abortion provider who knowingly terminates a "partially delivered living fetus" from up to two years in prison to up to four.
Young explained to MIRS that things like "post-term abortion," "partial birth" or "abortion-up-to-delivery" are not terms used in the medical community.
Moreover, he illustrated how conversations around a post-viability abortion are not happening in family planning clinics, but in "medical centers who have their own guidelines, procedures and policies that they follow, which are consistent with established medical guidelines for medical organizations, including the American College of Obstetricians and Gynecologists."
He also said there is a reporting system in the state for submitting any adverse outcomes surrounding abortion care, such as a patient's death or injury, where cases will be evaluated to see "if there's any punitive actions that need to be levied against the medical provider or the facility that was offering the care."
Young described how, while debates questioned whether abortion providers supported ideas like "abortion-on-demand" or might be performing procedures "haphazardly" in Michigan's latest Proposal 3-era, he has tried to clearly reiterate that his field is well-regulated with established guidelines.
“It is a sacrifice for many of the health care providers who are providing this care and advocated for Proposal 3 to pass in the state of Michigan,” Young said. “Obviously it passed and the support is overwhelming and positive, but we definitely had to face a lot of criticism, stigma and harassment.”
