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MICHIGAN’S ORIGINAL ABORTION POSITION FROM 1846

THE ORIGINAL STATUTE THAT ADDRESSES ABORTION ISN’T WHAT IS NORMALLY ADDRESSED (750.14), IT IS THE STATUTE THAT IMMEDIATELY FOLLOWS THE LAW THAT BRICKER WAS ACCUSED OF VIOLATING

Michigan Statute 750.15, which exists immediately after 750.14 addresses Abortion Law, not Miscarriage Inducing Law. In it, a doctor can prescribe medication that could terminate a pregnancy. The Statutes also will enable a physician to conduct an abortion if they deem it necessary within a specified amount of time pre-Roe. These five Statutes exist in the 1931 compilation of Michigan law, which is routinely updated.

At a minimum, the introduction of Heartbeat and Dismemberment will cause no harm to existing law regardless of post-Roe status, as the legislatures and the Courts would have to determine the impact and viability of Michigan law absent SCOTUS guidance on a post-Roe ruling that would overturn Roe and Doe. The likelihood of the lack of guidance is remote; however, either from SCOTUS or Congress.

The reason Heartbeat is a tremendous possible replacement or restricting guidance on Roe is it follows the will of most Americans who do not want abortion on demand. They are appalled at late-term abortions and abortion in the 2nd trimester.

Twelve states have passed or are about to pass Heartbeat laws. The more states that pass a Heartbeat law, the greater the pressure for SCOTUS acting on our behalf and making Heartbeat the law of the land. Many people are unaware that this was how Roe happened. 26 states had passed laws that decriminalized abortion by 1973, with more pending when Roe became the law of the land.

Right to Life has published their view of the abortion ban on their website under the heading of Directory of Laws on Pro-life Issues, Abortion ban – 1846. The following is their post:

 Abortion Ban

CH. 153 of 1846
MCL 750.14
Description
Any person who willfully administers to any pregnant woman any medicine, drug, substance, or employs any instrument or other means, with intent to procure an abortion, unless to preserve the life of the mother, would be deemed guilty of manslaughter. A of this law has been continuously in existence in Michigan since 1846. Roe v. Wade has rendered this section of code irrelevant. In the wake of Roe v. Wade, this law has been interpreted to prohibit abortion only after the child is “viable” and then, not when the mother’s life or “health” is at risk. Because “health” was defined in Doe v. Bolton to include age, emotional and financial consideration, family situation, etc, this law is unable to be used to stop any abortion at any stage. Abortion is legal throughout the entire nine months of pregnancy for any reason a woman and her doctor agree.[1]

Notice that they only post a small portion of the Statute with their interpretation. With just a slight quote, you would be led to think that RTL is correct. 750.15 is Michigan’s sister Statute to the Miscarriage Bill, 750.14. As you read it, understand that it allows a Doctor to prescribe medication that will induce an abortion. This is the legal ground for abortion in Michigan. The article is misleading and creates an understanding that is not true. Let me explain, but first, let’s look at the original language of 750.15.

750.15 Abortion, drugs or medicine; advertising or sale to procure; misdemeanor.

 “Selling drugs, etc., to produce abortion—Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor. Any drug or medicine known to be designed and expressly prepared for producing an abortion, shall only be sold upon the written prescription of an established practicing physician of the city, village, or township in which the sale is made; and the druggist or dealer selling the same shall, in a book provided for that purpose, register the name of the purchaser, the date of the sale, the kind and quantity of the medicine sold, and the name and residence of the physician prescribing the same.”[2]

IS IT TRUE THAT MICHIGAN HAS A TOTAL BAN ON ABORTION PRE-ROE?

Right to Life Michigan insists that Michigan is the only State in the Union that has a State Court ruling that there is no State right to an abortion pre-Roe. That is not necessarily true. The law does not provide for abortion on demand as a state-guaranteed right for abortion access, but Michigan Statutes do provide for abortion legally under medical supervision and with restriction dating from 1846 and codified in 1931. Here is RTLM’s stated understanding of Michigan’s status.

  • Michigan is the only state in the union with a State court ruling declaring there is no right to an abortion under the Michigan Constitution (See Mahaffey vs. Attorney General Michigan Court of Appeals 1997 and confirmed by the Michigan Supreme Court in 1998).

Right to Life of Michigan asserts that “Michigan is the only state in the union with a State court ruling declaring there is no right to an abortion under the Michigan Constitution (See Mahaffey vs. Attorney General Michigan Court of Appeals 1997 and confirmed by the Michigan Supreme Court in 1998).” I have looked at Mahaffey, and I am drawing a different conclusion based on the Courts finding and Michigan Statutory provision. Let me explain.

The issue of State Constitutional protections and provisions cannot be determined without being reviewed de novo on appeal. As the provisions of:

THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931 Section 750.14 AND Section 750.15
, Miscarriage and Abortion laws in Michigan Constitution 1931 have not been repealed nor have they been appealed since Roe and Doe, the previous universal ban on Miscarriage(s) through induction by medication or instrumentation AND protected rights for a Medical Physician who is duly licensed are assumed to be enforceable upon the termination of the Federal Laws, Roe, and Doe.

When Mahaffey was litigated, the court determined that there must be an intent to determine what the people’s intent was when Statutes and Constitutional provisions were adopted. This understanding brings the 1846 Constitutional protection of the Licensed Medical Physician and a Pharmacist’s ability to prescribe medications that could induce a miscarriage resulting in a legal abortion before the quick child determination, and in the case of the Doctor, the physician could perform a pre-quickened child based on their judgment. Mahaffey determined that (footnote #7) “Quickening is the point at which the mother can feel the movements of the fetus.   Quickening usually occurs in the fourth or fifth month of pregnancy.” Nixon, 42 Mich.App. At 335, n. 3, 201 N.W.2d 635.

Mahaffey concludes [3]that neither application of traditional rules of constitutional interpretation nor examination of Supreme Court precedent supports the conclusion that there is a right to abortion under the Michigan Constitution. This conclusion was based on the erroneous application of 750.14 as a prohibitive abortion statute. An appeal based on 750.15 would likely result in a different disposition. I find that conclusion on a conversation I had with William Wagner. He told me that he never understood why a sharp profile lawyer wasn’t challenging abortionists with Bricker and Mahaffey, seeking convictions. I assume it is because there are other Statutes that protect abortion notwithstanding 750.14, the basis of both Mahaffey and Bricker.

Right to Life Michigan claims that Michigan’s abortion precedent is unique among the United States in a good way. RTL says that:

  • We are one of only 8 states who have a pre-Roe ban on abortion. 

I think it is essential to ask if the claims of RTL are true and correct. If their assertions are not accurate or factually true, I believe that it is imperative that the pro-life movement of Michigan reassess it stands on abortive laws, and to take an aggressive position that favors the Heartbeat Initiative. This in no way prevents us from adopting other anti-abortion measures like banning the common D&E (Dilation and Evacuation, aka Dismemberment ban) abortion technique or other viable restrictions on abortion providers.

The reason for the question of factual presentation of Statutory regulations pre-Roe is important is there are numerous Statutes that exist on the Books in Michigan. I will begin with an examination of Statute 750.323 Manslaughter; death of quick child or mother from use of medicine or instrument. Act 323 is Michigan’s most reliable protection for a child who has yet to be born, minus the provision of 750.14, which prevents the non-licensed medical professional from inducing a miscarriage (the basis of Bricker’s conviction, upheld on appeal).

In Mahaffey, the Court ruled that the “Quick Child” language was for the protection of only the mother, and not necessarily the child. 323 explicitly states that the death of the “Quick child” will result in charges and that the child is protected under the law, insofar it is in a “quickened” state. Mahaffey determined that (footnote #7), “Quickening is the point at which the mother can feel the movements of the fetus.   Quickening usually occurs in the fourth or fifth month of pregnancy (Nixon, 42 Mich.App. at 335, n. 3, 201 N.W.2d 635).”

As you will in the reading of the provision, 323 criminalizes the death of the “Quick Child” or the child’s mother from the use of medicine, etc., with intent to destroy such child—”Any person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or such mother be thereby produced, be guilty of manslaughter.” In the Bricker case, the court acknowledged an unconstitutional provision that existed in 750.14 and 750.15. It determined that the language, “In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed,” was patently improper and ruled it unconstitutional based on the excessive weight of the burden of innocence and prosecution it placed on the defendant.


[1] https://rtl.org/legislation/abortion-ban/

[2] History: 1931, Act 328, Eff. Sept. 18, 1931 ;– CL 1948, 750.15
Former Law: See section 1 of Act 138 of 1873, being How., § 9312; CL 1897, § 11729; CL 1915, § 15523; CL 1929, § 16885; section 3 of Act 138 of 1873, being How., § 9314; CL 1897, § 11731; CL 1915, § 15525; CL 1929, § 16887; section 2 of Act 138 of 1873, being How., § 9313; CL 1897, § 11730; CL 1915, § 15524; and CL 1929, § 16886.

[3] https://milawyersweekly.com/fulltext-opinions/1990/01/01/mahaffey-v-attorney-general-of-michigan/