Supreme Court Ruling Causing Confusion In Michigan, Even Though Abortion There Is Legal

The state's largest health system alarmed staff and advocates with memos suggesting it might change abortion policies.
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If you want a sense of the confusion that Friday’s Supreme Court ruling on abortion has already caused, just look at what transpired in Michigan this weekend.

First, the state’s largest hospital network announced that it was suspending abortions except to save a mother’s life, even though abortion remains legally available in the state. Then it announced it would continue to provide some medically necessary abortions as well.

As of Saturday evening, and following a public backlash, it appears that the hospital network is back to performing abortions as it did before the Supreme Court ruling. But the likely reasons for the actions of the hospital officials ― whether it was indecision, confusion or some combination of the two ― include an ongoing court battle over abortion’s status in Michigan, threats of legal action by some locally elected conservative prosecutors and the possibility that abortion’s future legality in the state depends on the outcome of the November elections.

In short, the weekend’s saga is a reminder of just how precarious abortion access has become, even in states where it’s not currently illegal.

Michigan is one of those states where courts had long blocked enforcement of an old abortion ban because it violated Roe v. Wade. Earlier this year, as a U.S. Supreme Court ruling invalidating Roe seemed imminent, Democratic elected officials and abortion rights advocates asked the state courts to act once again ― this time, by declaring the 1931 ban incompatible with guarantees of personal liberty in Michigan’s state constitution.

Last month, one of those appeals prevailed with a lower court judge, who issued an injunction blocking enforcement until state courts could rule definitively on the 1931 ban’s constitutionality.

Providers like Planned Parenthood are continuing to provide abortion as before, while top state officials including Democratic Gov. Gretchen Whitmer have said repeatedly that abortion remains legal in the state while the injunction is in place.

But on Friday evening, the chief executive officer of BHSH Health System emailed staff to say that the network of hospitals and providers would no longer provide abortion services, except to save a mother’s life, in order to comply with the 1931 law.

The memo ― first reported by Crain’s Detroit Business and the Detroit News ― prompted an outcry on social media, including from doctors and Democratic elected officials citing their understanding that abortion in Michigan remains legal, at least for now.

A few hours later, just before midnight, BHSH’s CEO sent yet another email to staff offering “clarity.” That memo said the system would continue to provide abortions in “non-emergent” cases of medical necessity following “proactive” review by a group of health care providers.

Late Saturday night, BHSH sent out yet a third memo ― this time, stating the system had “evolved our approach” and that “we will continue our practice of providing abortions when medically necessary.”

Exactly what this all means isn’t clear. The memos haven’t defined terms like “medically necessary” and officials haven’t responded to inquiries seeking details.

And it’s not as if BHSH performed that many abortions in the first place. Large health networks often refer most elective abortions to independent providers like Planned Parenthood anyway and, according to the third BHSH memo, the system performed only 60 abortions that required hospitalization last year.

“I do not think there is legal ambiguity about where things stand with respect to the current state of the law in Michigan.”

- Eli Savit, prosecutor for Washtenaw County, Michigan

But BHSH officials have been clear on one point ― and it’s why this episode matters so much.

BHSH leaders are concerned about “legal ambiguity” over abortion. And a likely source of that ambiguity is the threat of legal action from county prosecutors.

Two conservative prosecutors who support the 1931 law have already petitioned higher state courts to remove the injunction. They could attempt to bring a case now, even without a ruling lifting the injunction, claiming that it applies only to state officials and not the independently elected county attorneys.

If one or both of the county prosecutors brought cases, they would be breaking with Michigan’s Democratic attorney general, Dana Nessel, who has said repeatedly she will not enforce the law, as well as country prosecutors elsewhere in the state who say the injunction is binding for them as well as state officials.

“I do not think there is legal ambiguity about where things stand with respect to the current state of the law in Michigan,” Eli Savit, prosecutor for Washtenaw County, told HuffPost on Saturday.

“There is a court order temporarily blocking enforcement of the 1931 law on state constitutional grounds,” Savit added. “I believe every enforcement agency in the state is bound to abide by that ruling, until and unless the injunction is lifted.”

But Savit is a Democrat who represents Washtenaw County, a metro Detroit suburb whose heart is the liberal college town of Ann Arbor. The two prosecutors seeking to end the injunction both ran as Republicans, representing more conservative communities around Grand Rapids and Jackson.

Of course, an attempt to bring an abortion case while the injunction is in place might face a quick rejection in court. That may be why other major health systems in Michigan have not hesitated on abortion provisions in the way that BHSH has.

But abortion rights advocates have said for months that the long-term future of abortion access in Michigan depends on voters, who elect members of the state Supreme Court and local prosecutors, as well as state officials and legislators.

Both Nessel and Whitmer are up for reelection in 2022, and control of the state Legislature is in play ― thanks, in part, to a nonpartisan redistricting commission that undid Republican-friendly gerrymandering.

It’s possible to imagine either party getting unified control of state government, and using it to pass legislation on abortion ― either some sort of guarantee of access (which Democrats would support) or some kind of ban (which Republicans would support).

Michigan voters may also have a chance to vote on a ballot initiative that would add an explicit guarantee of abortion rights to the constitution. Organizers for that effort are still gathering signatures and said anger over the U.S. Supreme Court ruling, dating back to a leaked version of the decision that appeared in Politico last month, has caused a surge in interest.

To get the measure on the ballot, organizers must collect and submit more than 400,000 signatures by July 11.

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