Reproductive Health Care is a Constitutional Right in Michigan. But is it Accessible?

Michigan lawmakers are planning to tear down lingering barriers to reproductive freedom—including repealing old state laws that mandate waiting periods and parental consent. 

MICHIGAN—The right to reproductive freedom alone doesn’t mean much to Speaker Pro Tempore Laurie Pohutsky (D-Livonia) if it doesn’t also include meaningful access for all Michiganders.

Michigan voters turned out in full force last November to support Proposal 3 and cement the right to reproductive freedom—including abortion care—into the state Constitution. But Democratic state lawmakers say there’s still more work to be done (and old laws to repeal) to help ensure Michiganders are able to fully exercise their new constitutionally protected rights.

That’s why Pohutsky plans to introduce a series of bills this fall that will chip away at lingering legal obstacles to reproductive health care that are still buried in old state laws, with the goal of expanding access and ensuring all Michiganders are able to receive the care they deserve.

“If we have a constitutional right to reproductive freedom, but it’s not accessible for everyone, then it’s not actually a right,” Pohutsky said in an interview with The ‘Gander earlier this month. 

Here’s the Deal:

The protections provided by Proposal 3 effectively ensure that nobody will ever be prosecuted with a crime for providing or receiving reproductive health care in the state of Michigan. The amendment also says that all Michiganders have a specific right to reproductive freedom.

That includes the right to make and carry out any and all pregnancy-related decisions (including abortion) and it bars the state from enacting any laws or regulations that would infringe upon those basic human rights without having a “compelling state interest in the health” of the patient.

Lawmakers took that guarantee a step further in April by repealing a nearly 100-year-old state law that had criminalized abortion care in Michigan, officially aligning state law with the newly amended State Constitution under Proposal 3—which was passed with about 57% of the overall vote last year. 

In doing so, Michigan has emerged as a nationwide beacon for choice and bodily autonomy.

In the year since the US Supreme Court struck down Roe v. Wade, abortion has now been completely banned in 14 states. Georgia also bans them at about six weeks of pregnancy, before most women even know they are pregnant. All told, about half of the states in the US are likely to ban abortion as a result of the Supreme Court decision, reports the New York Times. 

Michigan is now among 20 states that have enacted protections in the wake of the ruling, but Pohutsky said there are still several different state laws that are unnecessarily standing in the way of Michiganders and their right to make their own reproductive health care decisions. 

State Rep. Laurie Pohutsky (D-Livonia) (AP Photo/Carlos Osorio)

Specifically, she said she plans to reintroduce the Reproductive Health Act this fall—which aims to repeal several laws dealing with parental consent, mandatory waiting periods for patients, insurance coverage, and licensing requirements for health centers that offer abortions. 

Because those laws apply only to facilities that provide reproductive health care, they’re referred to as “TRAP laws”—or targeted restrictions on abortion providers. And by the end of the year, Pohutsky and other Democratic lawmakers in the state legislature plan to repeal them all. 

“The fact of the matter is, folks found a way to chip away at Roe v. Wade, and they’re going to do the same thing with our constitutional right that we have here in Michigan,” Pohutsky said. “We need to be proactive and eliminate some of the roadblocks that have already been put up.”

State Licensing Tweaks

The vast majority of abortions in Michigan (and across the country) are done via medication abortions, which usually consists of a two-dose regimen of pills that can be taken at home. 

Abortions for pregnancies further along than 11 weeks require an in-clinic procedure that usually takes less than 10 minutes. And while both forms of reproductive health care are shielded under Proposal 3, procedural abortion care is still a fairly scarce commodity in Michigan—especially Up North.

For example: Planned Parenthood, the state’s largest provider of reproductive health care services, operates 15 health centers in Michigan. All of them offer medication abortion, but state licensing restrictions have limited procedural abortions to only three of its health centers. 

One is in Ann Arbor; another is in Kalamazoo. The northernmost health center is in Flint.

That means Planned Parenthood patients living in the Upper Peninsula who are in need of a procedural abortion would need to travel seven hours by car to commute to their nearest clinic.

Paula Thornton Greear, president and CEO of Planned Parenthood Michigan, said that dearth of access is an unacceptable inconvenience for patients.

“What the state legislature needs to do, and what the voters mandated them to do, is to make sure that everyone can actually access the care guaranteed to them under Proposal 3, and ensure this isn’t just a right in name only, ” Thornton Greear told The ‘Gander last week. 

Pohutsky said state licensing requirements currently require all clinics that provide abortion care to be licensed as freestanding medical centers. That status prescribes a raft of sometimes unnecessary (and cost prohibitive) state rules that have effectively prevented new clinics from opening their doors in underserved areas—especially in the more rural pockets of the state.

The licensing requirements touch on everything from the width of the building’s doorways and hallways, to a mandate that every clinic also be equipped with a $10,000 surgical scrub sink. 

Pohutksy said those laws were put in place years ago specifically to limit access to abortion, and repealing them—at least in theory—should make it much easier for providers to expand.

“The majority of abortions are medication abortions, so in many of these facilities, there is no medical procedure even taking place,” Pohutsky said. “Even where they are, these are requirements necessary for places that are performing surgeries—not providing abortion care.”

Among the specific laws on the list for repeals: One signed in 2012 by former Republican Gov. Rick Snyder that requires clinics to perform at least 120 abortions every year to be licensed as a freestanding medical center, which shuttered clinics that had less demand. That bill also restricted the use of telemedicine in essential reproductive health care matters.

At the time, Republicans claimed the legislation was designed to help protect the health of pregnant women, but Pohutsky said the restrictions only created “abortion deserts” in Michigan—forcing many women to miss work, and take long trips just to receive care. 

“Right now, we have a legislative majority that is committed to making sure abortion stays safe, legal, and accessible in our state,” Pohutsky said. “We need to seize this moment and make sure we are taking advantage of the majority that we have, and taking care of as much of it as we possibly can at this moment in time, so we’re looking to get the ball rolling in the fall.”

Parental Consent Requirements

Also on the legislative to-do list: Repealing a law that requires all minors—regardless of their family situation—to obtain parental consent or a judge’s permission to receive abortion care.

Shanay Watson-Whittaker, a director at the nonprofit Michigan Voices, said the requirement creates an undue obstacle to health care for Michigan teenagers—especially those without supportive families to help them navigate the process, and for teenagers without parents at all.

Shanay Watson-Whittaker

Growing up in New York City in the mid-90s to a single mother who was addicted to crack cocaine, Watson-Whittaker said she was eventually forced to leave her home and live in a shelter. After being sexually assaulted inside the shelter at age 17, she became pregnant and had to make a decision about whether to seek an abortion—and her mother wasn’t around to sign off on the paperwork. But unlike in Michigan, New York doesn’t require parental consent.

“When I think about these restrictions, I think about young people like me,” she said. “I think about the people who had to make that hard decision, being 17 years old and pregnant. Everybody doesn’t have the same household circumstances. We don’t need another barrier.”

Pohutsky said the bill to remove the parental consent requirement will likely be among the “most contentious” items on the legislature’s docket this year, but she’s still determined to see it pass.

“We’ve heard horror stories about incest and parents who won’t give permission, but for any variety of reasons, a minor may not feel comfortable talking with their parents,” she said. “The goal is obviously for everyone to have a supportive parent, but that isn’t always the case.”

Ashlea Phenicie, interim vice president of public policy at Planned Parenthood of Michigan, said many Michigan teenagers are often afraid to reveal a pregnancy to their parents—either out of fear of abuse or violence, or because they’re scared they’ll be kicked out of their house. 

And because state law doesn’t allow consent from anyone other than a parent, the only other alternative for minors is to seek an order from a judge allowing them to receive abortion care—which can pose a paper-worked filled “logistical nightmare” for teenagers, she said. 

“It’s an incredible barrier, and not to mention such an important medical decision that’s being left to the discretion of a judge, who may or may not impose their own personal beliefs or make some type of political decision about what is appropriate for their health care,” Phenicie said. 

One example: After pleading with a judge to greenlight an abortion, one parentless 16-year-old girl in Florida was denied last year because a judge said she wasn’t “mature” enough. 

“But apparently she was mature enough to become a parent against her will,” Phenicie said. 

Mandatory Waiting Periods for Patients

Access to reproductive health care is also about timeliness, Pohutsky said. 

State law requires that certain information about abortion care be provided to anyone seeking an abortion at least 24 hours before the procedure. And it prohibits anyone from receiving an abortion until that 24-hour window has passed—regardless of whether or not they’re ready.

Among the upcoming legislative plans: Removing that mandatory waiting period altogether.

“An extra 24 hours of time for a person to go home and think about what they’re about to do is frankly misogynistic and there are all kinds of gross implications to it,” Pohutsky said. “It’s really onerous and there’s just no real medical benefit to having this extra restriction on the books.”

Phenicie said that limitation in state law only creates unnecessary delays for patients in need of essential health care—especially those who might not have realized there was a 24-hour waiting period, and may have already driven hundreds of miles to receive abortion care.

“That means they’re taking another day off work, traveling again, or getting another hotel room,” she said. “That’s a really devastating barrier for some folks.”

Republican legislators passed the state law that prescribed the 24-hour waiting period for abortion care in 1993, but legal challenges prevented it from taking place until 1999. Former Republican John Engler insisted the measure was about promoting safe healthcare practices.

“Is it really about healthcare? I would argue it’s not. It’s about power,” Thornton-Greear said.  “We need to trust people to make decisions on their healthcare and stop putting shackles on bodily autonomy. That’s what this 24-hour waiting period is designed to do.”

‘Rape Insurance’

Also on Democratic lawmakers’ radar when they return to Lansing this year: Legislation to expand insurance coverage for abortion and make it easier for Michiganders to access care.

Currently, Michigan bans health plans under the Affordable Care Act from covering abortions, except if a pregnancy endangers the life of the mother—meaning Michiganders (and employers) must purchase a separate insurance rider to ensure all other abortion care is actually covered.

That restriction has been criticized by opponents as a “rape insurance” law, including by then-state Sen. Gretchen Whitmer, who called the legislation “ignorant” and “repulsive” in 2013.

Gov. Gretchen Whitmer (Photo by JEFF KOWALSKY/AFP via Getty Images)

Pohutsky said that her plans include repealing that requirement, but it won’t necessarily mandate private insurers begin including all abortion care as part of their existing coverage.

“What tends to happen is that we’ll repeal an immediate roadblock, and then we’ll find that there are other factors that we need to address as well,” she explained. “The Reproductive Health Act is strictly a set of repeals—but that doesn’t mean that there will not also be a need for more proactive legislation around not just the insurance aspect, but any of this legislation as well.”

READ MORE: Whitmer Vows to Keep Up Fight for Reproductive Freedom in Michigan

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