Michigan's Abortion Ban Overturned

July 31, 1997 12:00 am

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Decision is First in Nation to Strike Down
Abortion Ban Mirroring Federal Legislation

Thursday, July 31, 1997

DETROIT — A federal judge today struck down a state law banning so-called “partial-birth abortions” as both unconstitutionally vague and an undue burden on a woman’s right of reproductive choice. The decision is the first in the nation to invalidate a ban that closely mirrors legislation being debated by Congress.

U.S. District Court Judge Gerald E. Rosen issued a permanent injunction blocking the ban from taking effect, ruling that law is so vague that it could apply to more than 85 percent of post-first-trimester abortions. The court held that the law therefore imposed an “undue burden” on women seeking to terminate a pregnancy.

The ruling came in response to a lawsuit brought by the American Civil Liberties Union and the Center for Reproductive Law & Policy. The plaintiffs, who included physicians and clinics, argued that the law’s language is so broad that it could ban virtually every safe method of abortion used after the first trimester.

While challenges have been mounted against similar laws in other states, today’s is the first final decision to be handed down.

“This is a great victory for women and their doctors in Michigan,” said Louise Melling, associate director of the ACLU’s Reproductive Freedom Project and lead counsel in the case. “The decision will ensure that women can continue to have safe abortions after the first trimester, and that doctors will not be prosecuted for providing high quality medical care.”

“We are relieved that the court recognized how important it is to let doctors concentrate on providing the best care to their patients rather than wondering whether they may be violating a vaguely worded abortion ban,” said David Gans, an attorney with the Center for Reproductive Law & Policy.

The law purports to ban what it defines as a “partial-birth abortion,” but doctors in Michigan warned that the term is unknown in the medical community, and could be used to criminalize the most common abortion procedures used in the second trimester of pregnancy.

The lawsuit therefore argued that the abortion ban could have forced women to undergo riskier and less available abortion methods. Moreover, the measure contains no exception to preserve a woman’s health and an inadequate exception for safeguarding her life.

The law threatened doctors and their staff with sentences of up to six months in prison and fines of up to $500. In addition, it directed the Michigan Board of Medicine to revoke the medical licenses of doctors found to be in violation of the statute.

In his 88-page ruling, Judge Rosen concluded: “Although this Court is always reluctant to disturb the policy decisions of the elected representatives of the people … the Michigan partial-birth abortion statute must be declared unconstitutional and enjoined because, under controlling precedent, it is vague and overbroad and unconstitutionally imposes an undue burden on a woman’s right to seek a pre-viability second trimester abortion.”

“One of the things that a federal judge is most reluctant to do is strike down a law enacted by a state legislature,” said Howard Simon, executive director of the ACLU of Michigan. “For a judge to do so, the evidence of the law’s unconstitutionality had to be overwhelming. That was the case here.”

The plaintiffs in the case, Evans v. Kelley, are Mark I. Evans, M.D.; Dennis D. Christensen, M.D.; and three Michigan branches of the Northland Family Planning Clinics, Inc.

The Michigan ban closely mirrors legislation being considered by Congress, as well as statutes that have passed in at least 16 other states around the country, the majority of which are also under challenge. While today’s decision applies only to Michigan, it may very well influence how other courts will decide the constitutionality of similar laws in other states.

This year alone, fourteen states have enacted bans on so-called “partial-birth abortions,” including Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Montana, Nebraska, South Carolina, South Dakota, Tennessee, and Rhode Island.

A federal bill passed both houses of Congress earlier this year, but in slightly different versions. If the bills are reconciled, a single version will be sent to President Clinton, who has once again promised a veto.

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