Whitmer set to seek end of abortion waiting period, other abortion regulations

Lansing — Gov. Gretchen Whitmer on Wednesday is expected to endorse legislative measures seeking to undo current Michigan regulations on abortion, including the elimination of waiting periods ahead of an abortion, proposed moves that drew quick opposition from a key anti-abortion group.

Michigan's 24-hour waiting period, part of the state's informed consent law, requires a woman to attest she has reviewed various educational materials and fetal development illustrations at least 24 hours before having an abortion. Whitmer and abortion rights advocates on Monday called it "medically unnecessary" and one of several areas considered to inhibit access to abortion.

Whitmer will use her Wednesday address about fall legislative priorities to touch on the need to eliminate "politically motivated, medically unnecessary restrictions on abortions" through passage of the yet-to-be-introduced Reproductive Health Act, according to Whitmer's office. Other parts of the package will include assurances of abortion access for everyone "regardless of where they live, work, or what type of insurance they have," an outline of Whitmer's prepared remarks said.

"With a U.S. Supreme Court that's shown it can and will strip away basic rights, Michigan must be proactive and repeal antiquated state laws," according to the speech outline.

The release of Whitmer's intended remarks came hours after several abortion rights groups — including the American Civil Liberties Union of Michigan, Planned Parenthood of Michigan and the National Abortion Rights Action League — said Monday they’re in conversations with lawmakers about repealing dozens of laws. Included in that list were the 24-hour waiting period for an abortion, a prohibition on using funding from the Medicaid health care program for mostly low-income residents for abortion and regulations that require clinics to meet exacting building code criteria.

The groups, which spearheaded the passage of a state abortion rights constitutional amendment in November, said the repeals being proposed are necessary to ensure the new language in Michigan’s Constitution protecting abortion rights is a reality in Michigan.

“The anti-abortion laws that remain on the books in Michigan are harmful,” said Loren Khogali, executive director of the ACLU of Michigan. “More importantly, they are unconstitutional.”

The anti-abortion group Right to Life of Michigan on Monday argued Michigan's current regulations are "longstanding, basic protections" that ensure informed consent, require safety regulations in clinics and block taxpayer dollars — such as those used for Medicaid — from being used to pay for abortions. Efforts to repeal the laws, said Right to Life's Genevieve Marnon, reflect a "blind fervor" by the abortion industry to expand.

"No industry is left to regulate itself," Marnon said in a statement. "The proposed removal of common-sense regulations serves the interests of the abortion industry, not women seeking abortions."

Legislation pending

The Democratic-led Legislature is expected to return for the fall session on Sept. 5, when leaders in the House and Senate said they'll be ready with the proposed Reproductive Health Act.

Sen. Sarah Anthony, a Lansing Democrat who chairs the Senate Appropriations Committee, and Rep. Laurie Pohutsky, a Livonia Democrat and the House’s speaker pro tem, have both been working on the legislation and expect to introduce it soon.

The expected introduction would come months after the new Democratic-majority Legislature voted to repeal a 1931 law that banned abortion in Michigan and passed a law banning discrimination against individuals who'd had abortions. It also would come in line with the new constitutional amendment.

"...There is still more work to do to get overly restrictive laws based on junk science off of the books," Anthony said in a statement. "I am excited to be a leader on a series of bills that will increase consistency and fairness in Michigan's reproductive health laws and expect to be formally introducing them soon."

Pohutsky said she expects the Reproductive Health Act to be introduced next month and move through the Legislature during the fall. She argued the restrictions on facility standards and requirements for a 24-hour waiting period "drastically limit access to abortion care."

"It's rooted in a misogynistic thought that a woman doesn’t know what she’s doing when she goes to access abortion," Pohutsky said.

The 24-hour waiting period at times requires women, some with limited time off, to come back two days in a row if they don't know to access the online informed consent form ahead of time, she said.

"Particularly considering how many patients come from out of state, since we are an access state, it poses a particular problem," Pohutsky said.

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Michigan's 24-hour waiting period law requires women seeking an abortion to complete and print an informed consent form at least 24 hours before an abortion. The form requires the individual to attest that she has reviewed a depiction, illustration or photograph of the fetus, a written description of the medical procedure, a prenatal care and parenting information pamphlet, and information on preventing abortion coercion. 

The Michigan Department of Health and Human Services provides access to the documents online but notes it "does not necessarily endorse all the information it is required to make available under this statute."

About 33 states require counseling or education — either verbal or written — ahead of an abortion, and 28 of those 33 require a specified waiting period that ranges from 18 hours to 72 hours, according to the pro-abortion research group Guttmacher Institute. Michigan is among the 18 states requiring a 24 hour waiting period.

The institute noted that the abortion policy landscape is changing rapidly across the U.S. in the wake of the U.S. Supreme Court Dobbs opinion a year ago.

Prop 3's wake

The push for a repeal of dozens of abortion regulations follows a protracted fight last November over Proposal 3, which anti-abortion opponents argued would nullify several Michigan statutes, including requirements for minors to get parental consent in order to have an abortion. Statewide voters approved the proposal 57%-43% after proponents of the measure argued anti-abortion groups were exaggerating the effect the constitutional amendment would have on current regulations.

But on Monday, the ACLU's Khogali referred to the regulations the groups were seeking to repeal as "unconstitutional." A spokeswoman for ACLU of Michigan, Ann Mullen, told reporters the group would use "every tool in its toolbox" when asked if the group would pursue litigation if the regulations weren't repealed.

The Michigan Catholic Conference argued last November that voters were encouraged to support Proposal 3 based in part on assurances that it would protect rights that were in place before the U.S. Supreme Court in June 2022 struck down the abortion rights ruling in Roe v. Wade — including Michigan's regulations on abortion.

"Repealing these laws does nothing to help Michigan women, but does everything to protect the abortion industry from any form of accountability to women," said Rebecca Mastee, policy advocate for the Michigan Catholic Conference.

Other laws up for repeal

Khogali said the ACLU of Michigan believes the parental consent law should be repealed, but also noted there may be more education needed before that specific issue is taken up. She was referring to Michigan's decades-old law requiring minor girls to have the written permission of at least one parent or a legal guardian to get an abortion — or they must ask a judge to overrule their parents.

Two previous versions of the Reproductive Health Act in 2019 and 2021 included a repeal of the parental consent law. But Pohutsky said, this time around, lawmakers are still discussing whether a parental consent element should be included.

"There is a lot of work that we want to do with this package of bills," she said. "But we also want to get it across the finish line."

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A full list of the groups' hoped-for policy changes was not immediately available, but the groups also are targeting so-called TRAP laws, an acronym that stands for "targeted restrictions on abortion providers" that encompass strict building code regulations for abortion clinics.

"Currently, in Michigan, if a facility offers abortion, they have to be registered as a free-standing surgical center despite the fact that the vast majority of abortions now are medicinal," Pohutsky said.

Paula Thornton Greear, president and CEO of Planned Parenthood of Michigan, said TRAP laws are “medically irrelevant” and “explicitly designed” to create hurdles to provide abortion care by requiring health centers to “construct mini hospitals” with strict requirements regarding hallway width, ceiling heights and restroom sizes.

“When voters overwhelmingly supported Prop 3 last fall, this is not the future they envisioned,” Thornton Greear said. “I cannot say strongly enough how imperative it is that we clean up Michigan’s law books and that we do so as quickly as possible."

eleblanc@detroitnews.com