Arguments heard in lawsuit seeking to invalidate Michigan abortion restrictions

Arguments were heard Tuesday in Michigan’s Court of Claims over a lawsuit challenging three long-established state abortion regulations, including a 24-hour waiting period.

The Center for Reproductive Rights filed the lawsuit in February on behalf of Northland Family Planning Centers and Medical Students for Choice, alleging the regulations violate the 2022 passage of a ballot proposal that enshrined the right to an abortion in Michigan’s constitution. 

Proposal 3, also called the Reproductive Freedom for All (RFFA) amendment by organizers, struck the 1931 ban on abortions from Michigan law and created additional protections for people seeking reproductive health care.

The lawsuit was filed against Michigan Attorney General Dana Nessel, the Michigan Department of Licensing and Regulatory Affairs (LARA), and the Michigan Department of Health and Human Services (MDHHS). 

The suit claims the laws in question, which also include the required distribution of certain information to patients before an abortion, and the prohibition of advanced practice clinicians to perform abortions, “violate the RFFA by imposing medically unjustified restrictions on abortion, singling out abortion care for uniquely onerous treatment, and discriminating against Michiganders who already face health inequities, including Black, Indigenous, and other people of color (BIPOC), low-income communities, and people in rural areas of the state.”

In initial arguments before Court of Claims Judge Siwa Patel, the attorney representing the Center for Reproductive Rights, Rabia Muqaddam, argued that the plain text of the law passed in 2022 made clear that the intent of Michigan residents was to sweep away all barriers to abortion care that didn’t serve the interests of patients.  

“The Reproductive Freedom for All amendment specifies that the state can assert only one very specific interest as compelling; an interest in the health of the pregnant person consistent with the standard of care for evidence based medicine and which does not intrude upon an individual’s autonomous decision making,” she said. “The immense and entirely uncontested medical consensus is that the challenge laws do not serve patient health in any way and actually undermine it.”

Speaking specifically to the 24-hour waiting period, Muqaddam said numerous studies over the last two decades have disproven the argument that they are necessary so that patients don’t make a hasty decision that would ultimately be harmful to them. 

She also said that the mandatory counseling provision often provides factually inaccurate information that is “fundamentally at odds” with the concept of informed consent. 

“The reality is, that’s not true as numerous articles have demonstrated over the last few decades,” she said. “What is clear from the research is also that these laws impose significant harm. So they delay abortion care. Abortion care is time sensitive. It increases an incremental risk as time passes.”

In response, Assistant Attorney General B. Eric Restuccia, arguing on behalf of the state, said the demands made by the lawsuit are based on a constitutional framework that existed prior to the Dobbs decision by the U.S. Supreme Court, which overturned Roe v. Wade, and as such, are entirely compatible with the constitutional amendment approved by voters in 2022.

“In fact, one of the central themes of the (RFFA) campaign was ‘Restore Roe.’ The laws here and others like them were affirmed before Dobbs, so this idea that there was this sea change in Michigan law from the pre-Dobbs legal framework, I think, is inconsistent with the constitutional language and also, I believe, the themes of the campaign of the supporters of the amendment.”

Restuccia said that the lawsuit was seeking the wrong venue to remedy the situation.

“In short, these are really legislative questions. The proper place to bring these points is to the legislature and not to this court,” he argued.

In fact, the Democratic-led legislature tried to overturn the 24-hour waiting period, among other provisions, last year, but were forced to relent after state Rep. Karen Whitsett (D-Detroit) expressed opposition, hamstringing the slim 56-54 House majority.

Patel questioned Restuccia how the state answered the plaintiffs’ argument that the informed consent standard for patients is something that needs to be specific to each individual.

“So what is the argument on the other side that you should have this formulaic informed consent that is applied to all patients?” she asked.

Restuccia responded that the laws ensure that a consistent standard is applied for all seeking abortion care.

“The providers say, ‘Trust us; we give this information.’ Law and the constitutional protection doesn’t protect providers. It protects patients,” he said. “I know at Northland, I mean, they may be the flagship. I think one of the affidavits (says) that they perform 8,000 of the 30,000 abortions in Michigan each year. They operate by their own statement, and I don’t dispute (by the) highest ethical standards. But there are many abortion providers throughout the state of Michigan. Our department has seen things in the past with some of the providers being of questionable ethical practice.”

The third law that the lawsuit seeks to make invalid is a prohibition on allowing advanced practice clinicians, including nurse practitioners, physician assistants and nurse-midwives, to be able to perform abortions.

Again, Restuccia argued that it should be a legislative decision to allow advanced practice clinicians to carry out abortions, as that is the case in nearly 20 other states. However, he said keeping the prohibition in place would ensure a “Cadillac standard of ensuring proper medical action.”

Muqaddam, however, noted that advanced practice clinicians in the state, including at the University of Michigan, are already providing medications and procedures that are used in early abortion care for patients with miscarriages.

“Those techniques are identical to what they would be providing for patients seeking an abortion,” she said. “That is the standard of care in the context of those procedures in the State of Michigan. There is no reason that they should not be permitted to provide the very same care to abortion patients.”

Muqaddam added that in those instances where care was found to be appropriate, those providers were held accountable due to generally applicable medical malpractice laws.

Restuccia’s defense on behalf of the state was made despite the fact that Nessel, his superior, previously said the laws are unconstitutional and supported the request to prevent her office from enforcing them. Regardless, her office said it would create a so-called “conflict wall” so that Restuccia could represent the State of Michigan. 

Judge Patel said supplemental briefs on the arguments will be due in two weeks, with an additional week for each aide to respond to those. After that, she said she would work to issue an opinion as “soon as practicable thereafter,” although that could take several months.