EXAMINING THE CLAIMS OF RIGHT TO LIFE ABOUT WHY THE MICHIGAN HEARTBEAT INITIATIVE IS WRONG FOR MICHIGAN
On May 29th, 2019 my friend and Law Professor William Wagner wrote an article that has reinforced Right to Life’s assertion that “Michigan’s existing abortion law is the strongest in the nation. It expressly protects life at all stages, even before the child’s heart begins to beat.” The article was written to critique Michigan Heartbeat Coalition’s bid to enact a Heartbeat law in Michigan.
The Heartbeat Coalition of which I am a part, serving on the Board, contends that Wagner’s assertion may be right from an emotional standpoint, he is wrong from a legal perspective when it is claimed that abortion has been banned since 1846. My opinion on my saying that William and Right to Life are incorrect is based on a number of issues including long and extensive conversations on the phone, an almost six-hour private meeting to converse about the issues and hours of research into the laws of Michigan and how they view abortion beginning in Statutes that date to 1846.
My conclusions are also based on phone conversations I have had with Genevieve Marnon and Barb Listing from Right to Life Michigan’s Lansing office. Genevieve’s original counsel and guidance is what sparked my interest in digging into the legal weeds of Michigan’s Statutory law and ruling on abortion.
A MOVEMENT IN MICHIGAN THAT BEGAN WITH A CONVERSATION WITH RTL
The reason why this is important is that it seems as if there are those in the pro-life movement who are trying to confuse and divide us as a group. I feel compelled to give my side of the story. I am going to include a recent conversation I had with an unnamed friend who is confused about the difference between RTL and MHC. I do not want their t to be confusion, so let you in our text conversation. “Thinking. When I first began to talk with you sometime around the end of March 2019, you told me God was moving in your heart about garnishing support to stop abortion. Were you at all aware, at that time, of a heartbeat bill? Was that the original motivation to have an April 23 rally?”
Answer: Was I planning a Heartbeat Bill from the beginning? A lot of people think that, but the answer is a qualified no. It’s qualified as my original idea was to have a large enough gathering and sit-in that our legislators would get the message: under no circumstances do we want Michigan to follow in the footsteps of NY or listen to Northam. I thought that we could figure out a way to influence some form of legislation, but I wasn’t knowledgeable enough to have a grasp on what would be necessary to accomplish legislation.
It was at the end of January that I put the protest on the Capitol calendar, and when I contacted Right To Life Michigan. I was eventually directed to Genevieve Marnon. After repeated calls and left messages, she spoke with me and listened to my idea. Her burning question was what I wanted to accomplish, and I told her first we wanted to send a message. Second, maybe we would get some form of legislation. She asked what kind and I responded that I didn’t know but perhaps something like Heartbeat, as it had recently been announced that Ohio Governor DeWine was going to sign it.
Genevieve then told me that Heartbeat was a bad idea for Michigan, and I should endorse the Dismemberment Bill they were promoting, so I did. If you go to Iam4life.com, our website and read the Manifesto 4 Life that I wrote, the verbiage she emailed me is still in the Manifesto.
As the process developed and I was trying to get quality speakers, Janet Porter elected to speak whereas RTLM chose to decline. People began asking me more about Heartbeat, and I started digging in the weeds to gain clarity on Michigan abortion law.
When I met with Speaker Chatfield, I asked him a question about Heartbeat that others asked me to ask him, would he endorse Heartbeat if enough signatures were gathered. I say all that to say Heartbeat was not on my radar when I began this journey.
Now for the meat of my journey through Michigan’s legal Statutes that govern the way we see the law in our great State. I am going to take the assertions that Right to Life makes in a letter they sent out to their constituency entitled,
WE ARE NOT NEW YORK, VERMONT OR VIRGINIA…….
NOR ARE WE GEORGIA, OHIO OR KENTUCKY
In this newsletter style post, RTL poses several questions by Bullet Point. I am including the points and highlighting them before I respond to each assertion with research from the Penal Code of 1931 and the Legal briefs that are in the Public Record for anyone to read. The first statement I am responding too nvolves a case where Right to Life and William Wagner say that the Michigan Supreme Court upheld a conviction of a person who performed an abortion. The man’s last name was Bricker and RTL, AND Wagner says he was convicted of performing an abortion and successfully prosecuted under the what they say is Michigan’s ban on abortion. But are they being honest in their statement? Read on and see if you agree with them after looking at the facts.
QUESTION: IN LIGHT OF MICHIGAN’S SUCESSFUL PROSECUTION OF AN ABRTIONIST AFTER ROE BECAME LAW (BRICKER), IS MICHIGAN UNIQUE WITH A TOTAL BAN ON ABORTION PRE-ROE?
Here’s what Right to Life Michigan says,
- In 1973 the Michigan Supreme Court in People vs. Bricker confirmed yet again that it is the policy of the State of Michigan to prohibit abortion except to save the life of the mother and held that our existing ban is Constitutional but under the constrains of Roe vs. Wade and Doe vs. Bolton.
PEOPLE VS BRICKER
Join me as we look at the truth of Bricker. RTL and William Wagner claim that the Michigan Supreme Court has upheld a pre-Roe ban on all abortions minus life endangerment. RTL, Patrick Colbeck and Wagner say that this is significant, as it serves as an under girder of their assertion that Michigan has an outright pre-Roe ban on abortion. So, I am asking a question based on Bricker. Does the conviction of Bricker which happened after Roe, uphold a pre-Roe ban on abortion? Was Bricker convicted of performing an abortion, or was he convicted under a different non-abortion Statute?
750.14 was the Statute that gained the upheld conviction of Bricker in People vs. Bricker, which is what some pro-life organizations point to when they say Heartbeat could jeopardize the Michigan pre-Roe Ban on Abortion, as Bricker was convicted and his conviction was upheld on appeal. There are a few problems with this; however, as Bricker was not convicted for performing an abortion before Roe’s passage. He was convicted of performing a medical procedure without a license.
The Court never determined the viability of a pre-Roe ban or if a conviction for performing an abortion was conducted adequately under the proper Statute. As I previously said, 750.14 bans all induced miscarriages either by medicine or by instrumentation. The issue of the abortion was deemed of no consequence in the conviction, which is why Bricker went to prison. But a separate Court did rule on 750.14 and it ruled that the law which had begun in 1846 protected abortion up to the 13th week of pregnancy in Michigan. This happened in the Nixon case and it was in 1972. As the case settled after Roe, the portion that dealt with abortion was ruled of no consequence. Bricker’s determination of 750.14 has never been challenged, as Roe became the prevailing law in Michigan.
Right to Life say that Michigan has a complete ban on all abortions except where a mother’s life is endangered. Is their claim true from 1846 forward. Is the claim true? Not according to the Court ruling in People v. Nixon, a doctor who was convicted of performing an abortion. Michigan is NOT unique in its pre-Roe abortion law. The Nixon Court has said that Michigan has had a law that protects the right to abortion before the unborn is “quickened.” The Court upheld the conviction, claiming that the surgical procedure happened under bad conditions. Nixon gives the liberal contingency on our State a way to suppress the prolife community if Roe were overturned without legal guidance from SCOTUS in my opinion.
At the same time, they ruled that the infamous abortion ban known by its Penal Code entry 750.14 was no longer applicable nor could it be used to convict a doctor who performed an abortion in a safe and sterile environment like a hospital or clinic that was specially equipped as a surgical center. The Court ruling was made before Roe became law in Michigan as Federal law. Those who claim that there is a pre-Roe ban are wrong if Nixon’s decision is the law of our State.
HERE’S THE TRUTH
Untrained and non-licensed people cannot perform surgical procedures or prescribe medications in the State of Michigan. It is against the law, and rightly so. Nor can a doctor perform a surgical procedure in a unsafe manner. Act like this, get convicted.
Does this settle everything? No. If Roe were overturned tomorrow, our Courts in Michigan would have their hands full deciding which of the current laws and rulings that exist in the Statutes would be applicable and enforceable. Lawsuits would be filed, and appeals would follow. My opinion is consistent with the Court’s finding in Mahaffey and the need to determine Statutory regulation based on appeal if the Federally protected right to an abortion were not in place.
These Statutes do not include Heartbeat or Dismemberment. Adding Heartbeat and Dismemberment would not jeopardize already existing Statutes. Right to Life is right when they say that an activist judge could take any one of the rulings and make bad law. However, a RIGHTEOUS ACTIVIST JUDGE could act on behalf of the unborn. Therefore, our legislators need to enact laws that will work for all Michiganders.
MICHIGAN HAS LANGUAGE IN CASE LAW THAT USES THE FETAL HEARTBEAT AS A DETERMINER OF WHEN LIFE NEEDS TO BE PROTECTED
In another Michigan case, the Court uses the language of the heartbeat in an unborn child whose heart is beating as a determination for viability. In this case, Larkin v Wayne Prosecutor, language was created that could be taken to use the finding of the heartbeat as the point where life in the womb needs to be protected indisputably. The Court said, We hold that the word child as used in MCLA 750.322; MSA 28.554, and MCLA 750.323; MSA 28.555, means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernably moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the *542 aid of the usual medical care and facilities available in the community.
Abortion is legal in Michigan. We
need to find ways to restrict as many abortions as possible. Michigan Statute
allowed abortions in Michigan pre-Roe. The claim that Michigan didn’t is based
on bad application of law according to Nixon. The Nixon ruling states that
abortion has been legal in Michigan at least through the first trimester,
possibly through the fourth or fifth moth based on when the baby becoming
“quickened.” This why Heartbeat is both good and right for Michigan.