Friday’s U.S. Supreme Court decision overturning Roe v. Wade is confusing and could limit access to Michigan’s largest hospital system, even though a state judge has already said abortion should remain available while legal disputes over its status play out in court from Michigan.
This is one more sign of the magnitude of the impact of the decision. It is also a reminder of how access to abortion in some states could depend on the outcome of the November elections.
Michigan is one of those states where the courts have long blocked enforcement of an old ban on abortion because it violated Roe v. Wade. Earlier this year, as a U.S. Supreme Court decision striking down Roe seemed imminent, elected Democrats and abortion rights advocates called on state courts to act again — this times, by declaring the 1931 ban incompatible with guarantees of personal liberty in the Michigan state constitution.
Last month, one such appeal prevailed with a lower court judge, who issued an injunction blocking enforcement until state courts could rule on the constitutionality of the law. ban of 1931.
Providers like Planned Parenthood continue to offer abortion as before, while top state officials, including Democratic Governor Gretchen Whitmer, have repeatedly said abortion remains legal in the state as long as the injunction is in place.
But on Friday evening, the chief executive of BHSH Health System emailed staff to say the network of hospitals and providers was suspending abortions except to save a mother’s life to comply with the law of 1931. The memos ― first reported by Crain’s company in Detroit and the Detroit News ― caused an outcry on social media, including from doctors and elected Democrats, citing their understanding that abortion in Michigan remains legal, at least for now.
Hours later, just before midnight, the CEO of BHSH sent another email to staff offering “clarity”. The memo said the system would continue to offer abortions in “non-emergency” cases of medical necessity after a “proactive” review by a panel of health care providers.
The memos did not define terms such as “non-urgent” or “medically necessary.” BHSH’s media office did not respond to questions from HuffPost on Saturday except to cite the two emails that caused confusion.
“I don’t think there is any legal ambiguity as to the current state of the law in Michigan.”
– Eli Savit, District Attorney for Washtenaw County, Michigan
It is not even certain that the system has significantly changed its approach to abortion. Either way, large health networks frequently refer most elective abortions to independent providers like Planned Parenthood.
But the BHSH emails are clear on one point. They say officials are concerned about “legal ambiguity” over abortion. And a likely source of this ambiguity is the threat of legal action from county prosecutors.
Of them conservative prosecutors who support the 1931 law have already asked the state’s superior courts to withdraw the injunction. They could try to sue now, even without a ruling lifting the injunction, saying it only applies to state officials and independently elected county prosecutors.
If either or both county prosecutors were to press charges, they would break with Michigan’s Democratic attorney general, Dana Nesselwho has said several times she won’t enforce the law, as well as state prosecutors elsewhere in the state who say the injunction is binding on them as well as state officials.
“I don’t think there is any legal ambiguity as to the current state of the law in Michigan,” Eli SavitWashtenaw County prosecutor, told HuffPost Saturday.
“There is a court order temporarily blocking the application of the 1931 law for constitutional reasons,” Savit added. “I believe every law enforcement agency in the state is obligated to abide by this ruling, until the injunction is lifted.”
But Savit is a Democrat who represents Washtenaw County, a Detroit metropolitan suburb whose heart is the liberal college town of Ann Arbor. Both prosecutors seeking to end the injunction at once ran as Republicansrepresenting more conservative communities around Grand Rapids and Jackson.
Of course, an attempt to bring an abortion case while the injunction is in place could face a quick dismissal in court. Maybe that’s why other major health systems in Michigan have not shied away from abortion provisions as BHSH has.
But abortion rights advocates have been saying for months that the long-term future of abortion access in Michigan depends on voters, who elect the state’s Supreme Court members and prosecutors. locals, as well as state officials and legislators.
Nessel and Whitmer are both up for re-election in 2022, and control of the state legislature is on the line — thanks, in part, to a nonpartisan redistricting commission that overturned Republican-friendly gerrymandering.
It is possible to imagine either party gaining unified control of the state government and using it to pass abortion legislation – either a kind of access guarantee (which Democrats would support) or some sort of ban (which Republicans would support).
Michigan voters may also have the opportunity to vote on a ballot initiative that would add an explicit abortion rights guarantee to the constitution. Organizers of that effort are still collecting signatures and said anger over the U.S. Supreme Court ruling, dating back to a leaked version of the ruling that appeared in Politico last month, has caused renewed interest.
To get the measure on the ballot, organizers must collect and submit more than 400,000 signatures by July 11.
Learn more about the Supreme Court decision on abortion: