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Abortion restrictions challenged in court: 24-hour waiting period, "informed consent" materials

Renee Chelian, executive director and founder of the Northland Family Clinics in southeast Michigan, is one of the abortion advocates suing to overturn some of the state's remaining restrictions.
Paulette Parker
Michigan Public
Renee Chelian, executive director and founder of the Northland Family Planning Centers in southeast Michigan, is one of the abortion advocates suing to overturn some of the state's remaining restrictions.

Abortion advocates are asking the Michigan Court of Claims to throw out some of the state's remaining abortion restrictions, arguing they violate the constitutional amendment to the state Constitution that voters passed with Proposal 3 in 2022, enshrining abortion rights.

The Reproductive Freedom for All amendment creates some of the broadest state constitutional protections for reproductive rights in the country — at least on paper. But several abortion restrictions predating Proposal 3 and violating those protections remain in place, according to the suit filed Tuesday by the Center for Reproductive Rights, Northland Family Planning Centers, and Medical Students for Choice.

The three restrictions named in the suit are:

  1. The state’s 24-hour mandatory waiting period. Currently, it requires patients to access an online form and sign it at least 24 hours, but no more than two weeks, before their appointment. They must also print the form and bring it to their appointment, otherwise the appointment can’t proceed.  
  2.  The state’s informed consent requirement, which is part of the same form, and requires patients to click through information about prenatal care and parenting, "prescreening" information about abortion coercion, written summaries of abortion procedures, and illustrations of fetal development. 
  3. A law allowing only physicians (and not other advanced care practitioners, like nurse practitioners) to provide abortions. 

Last year, Democratic legislators failed to get the votes needed to remove the 24-hour waiting period and mandatory consent form, as well as a ban on Medicaid funding for abortion. They were, however, able to pass a "watered-down" version of the Reproductive Health Act, allowing private health insurance to cover abortion and removing requirements that clinics providing procedural abortions must be licensed as freestanding surgical centers.

The suit filed today does not challenge the ban on Medicaid funding for abortion.

“Every day, and especially since Roe was overturned, our providers and clinic staff work tirelessly to meet the needs of both Michigan residents and out-of-state patients,” said Renee Chelian, executive director of Northland Family Planning Centers, in a news release issued Tuesday. “Despite our win with Proposal 3, patients continue to face onerous barriers to care imposed by Michigan law. These barriers should not exist under the RFFA.”

At least 150 Michigan patients are turned away from their appointments each month, because they didn’t know about or made a mistake with this form, according to Planned Parenthood of Michigan. At Northland, ten patients every month must make a second appointment because of these requirements, said Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights, on Wednesday.

"These laws are among the most burdensome for patients," she said.

But abortion rights opponents say the suit is a way of skirting the legislative process, and goes beyond what voters want. They cite polling commissioned by Right to Life of Michigan and the Michigan Catholic Conference, which was used to oppose the Reproductive Health Act.

“The abortion industry, with the help of Governor Whitmer, is dead set on systematically stripping away protections for women who are seeking an abortion,” Genevieve Marnon, legislative director for Right to Life of Michigan, said in an email Tuesday. The group filed its own suit last year, seeking to have Proposal 3 overturned.

“Women should be very concerned. Don’t let anyone tell you they are doing this to fulfill the will of Michigan voters and somehow tie this to Proposal 3 — that is a fallacy.

“Governor Whitmer and Democrats in our state legislature just removed basic health and safety protections from clinics that do abortions," Marnon said. "95% of Michiganders wanted these basic, long-standing health and safety regulations to remain in place. They were unsuccessful at removing Informed Consent and the 24-hour waiting period through the legislative process last fall so are now coming after it through the courts.”

But the Michigan voters who overwhelmingly passed Prop 3 made it clear that the state cannot impose "medically unjustified" restrictions on reproductive care, Muqaddam said. "So pro-life activists might say these are intuitive, might say that they're common sense, but the science refutes that entirely."

The suit points to public health research showing mandatory waiting periods don't have an impact onhow certain patients are that they want an abortion.

According to a review of 34 studies published in BMC Public Health in 2022:

"There is no significant increase in decisional certainty where an [mandatory waiting period] is imposed, and more recent research reinforces the finding that MWPs delay abortion and impose opportunity costs on women, which in turn have disproportionate impacts on poor women and those who live further away from clinics."

"Because Michiganders said so clearly that there needs to be a medical basis for restricting abortion, we think this is a very, very, very, clear cut case, regardless of whether the Legislature ultimately had the votes," Muqaddam said.

The plaintiffs are also seeking a preliminary injunction that would temporarily block the enforcement of the 24-hour waiting period and informed consent paperwork. A hearing date hasn't been set yet.

Updated: February 8, 2024 at 11:39 AM EST
Kate Wells is a Peabody Award-winning journalist currently covering public health. She was a 2023 Pulitzer Prize finalist for her abortion coverage.
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