Mahaffey v. Attorney General
| Decision Date | 14 March 1997 |
| Docket Number | Docket No. 177765 |
| Citation | 564 N.W.2d 104,222 Mich.App. 325 |
| Parties | Maryann MAHAFFEY, Ethelene Crockett Jones, M.D., Mark Evans, M.D., and Charles Vincent, M.D., Plaintiffs-Appellees, v. ATTORNEY GENERAL, Defendant-Appellant, and Vernice Davis Anthony, Harold J. Sauer, M.D., and Richard E. Griffin, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
American Civil Liberties Union Fund of Michigan by Paul J. Denenfeld and Corinne B. Yates, Detroit, Elizabeth Gleicher, Detroit, for plaintiffs.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, R. John Wernet, Jr., Lansing, for the Attorney General.
Joseph P. Zanglin and Americans United for Life, Detroit, by Paul B. Linton and Clarke D. Forsythe, Chicago, IL, for Amici Curiae Michigan State Senators R. Robert Geake, Mat Dunaskiss, Doug Carl, David Honigman, Philip Hoffman, John Schwarz, Paul Wartner, William VanRegenmorter, Gilbert Dinello, Dick Posthumus, Glenn Steil, Phil Arthurhultz, and George McManus, and Michigan State Representatives Timothy Walberg, Michael Griffin, Clyde LeTarte, Dan Gustafson, Walter DeLange, Harold Voorhees, Clark Harder, Alan Cropsey, Paul Hillegonds, Jessie Dalman, Paul Baade, Jim McBryde, and Michelle McManus.
The Center for Reproductive Law & Policy by Eve Gartner, Priscilla Smith, and Kathryn Kolbert, New York City, Shelly Spivack and Linda Pylypiw, Flint, and Planned Parenthood by Lore Rogers, Ann Arbor, for Amici Curiae Northland Family Planning Clinic, Inc., Northland Family Planning Clinic, Inc.-West, Northland Family Planning Clinic, Inc.-East, Summit Medical Center, Feminine Health Care Clinic, P.C., Womancare of Downriver, P.C., Womancare of Livonia, P.C., Womancare of Macomb, P.C., Womancare of Southfield, P.C., Womancare of Lansing, P.C., Womancare of Northland, P.C., Michiana Abortion Clinic, P.C., Heritage Clinic for Woman, Planned Parenthood of Mid-Michigan, Planned Parenthood League-Sanger Center, Planned Parenthood of South Central Michigan, Louis Twigg, M.D., Victor Shay, M.D., Chin-Shuh Chen, M.D., Michael A. Roth, M.D., Planned Parenthood Association of Southwestern Michigan, Planned Parenthood of East Central Michigan, Planned Parenthood Centers of West Michigan, Marquette-Alger Planned Parenthood, Inc., Northern Michigan Planned Parenthood Association, Inc., National Organization for Women, Michigan Chapter, and Michigan Abortion Rights Action League.
Before REILLY, P.J., and MARK J. CAVANAGH and R.C. ANDERSON *, JJ.
In this case we are required to decide whether 1993 P.A. 133, 1 commonly known as the "informed consent law," violates the Michigan Constitution. The trial court held that the Michigan Constitution guarantees a right to abortion that is separate and distinct from the federal constitutional right to abortion. The trial court then held that the informed consent law violates the state right to abortion. The trial court further held that the informed consent law is unconstitutional because it violates the Headlee Amendment, Const.1963, art. 9, § 29. We reverse in part and remand for proceedings consistent with this opinion.
In 1993, the Legislature amended the Public Health Code to establish minimum standards for physicians who perform abortions. The new act requires that a physician or qualified assistant must provide a woman seeking an abortion information about the fetus, including both a description and a depiction of a fetus at the approximate gestational age of the woman's fetus, and information about the abortion procedure itself and potential complications from the procedure. The physician must instruct the woman that she has the option to review the information or not. The act also mandates a twenty-four-hour waiting period between the receipt of the information and performance of the abortion. M.C.L. § 333.17015(3); M.S.A. § 14.15(17015)(3). However, both the dissemination of the information and the waiting period are waived in cases where a physician determines that a medical emergency exists. M.C.L. § 333.17015(7); M.S.A. § 14.15(17015)(7). In addition, the act requires that local health departments provide certain information to women seeking abortions, including descriptions of medical procedures used to perform abortions and descriptions and depictions of a fetus at the approximate gestational age of the woman's fetus. M.C.L. § 333.17015(15); M.S.A. § 14.15(17015)(15).
The Legislature set forth its reasons for adopting the new requirements as follows:
The legislature recognizes that under federal constitutional law, a state is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. Sections 17015 and 17515 are nevertheless designed to provide objective, truthful information, and are not intended to be persuasive. The legislature finds that enactment of sections 17015 and 17515 is essential for all of the following reasons:
(a) The knowledgeable exercise of a woman's decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice regarding abortion.
(b) The decision to obtain an abortion is an important and often stressful one, and it is in the state's interest that the decision be made with full knowledge of its nature and consequences.
(c) Enactment of sections 17015 and 17515 is necessary to ensure that, before an abortion, a woman is provided information regarding her available alternatives, and to ensure that a woman gives her voluntary and informed consent to an abortion.
(d) The receipt of accurate information about abortion and its alternatives is essential to the physical and psychological well-being of a woman considering an abortion.
(e) Because many abortions in this state are performed in clinics devoted solely to providing abortions, women who seek abortions at these facilities normally do not have a prior patient-physician relationship with the physician performing the abortion, nor do these women continue a patient-physician relationship with the physician after the abortion. In many instances, the woman's only actual contact with the physician performing the abortion occurs simultaneously with the abortion procedure, with little opportunity to receive counsel concerning her decision. Consequently, certain safeguards are necessary to protect a woman's opportunity to select the option best suited to her particular situation.
(f) This state has an interest in protecting women and, subject to United States constitutional limitations and supreme court decisions, this state has an interest in protecting the fetus.
(g) Providing a woman with factual, medical, and biological information about the fetus she is carrying is essential to safeguard the state's interests described in subdivision (f). The dissemination of the information set forth in sections 17015 and 17515 is necessary due to the irreversible nature of the act of abortion and the often stressful circumstances under which the abortion decision is made.
(h) The safeguards that will best protect a woman seeking advice concerning abortion include the following:
(i) Private, individual counseling, including dissemination of certain information, as the woman's individual circumstances dictate, that affect her decision of whether to choose an abortion.
(ii) A 24-hour waiting period between a woman's receipt of that information provided to assist her in making an informed decision, and the actual performance of an abortion, if she elects to undergo an abortion. A 24-hour waiting period affords a woman, in light of the information provided by the physician or a qualified person assisting the physician, an opportunity to reflect on her decision and to seek counsel of family and friends in making her decision.
(i) The safeguards identified in subdivision (h) advance a woman's interest in the exercise of her discretion to choose or not to choose an abortion, and are justified by the objectives and interests of this state to protect the health of a pregnant woman and, subject to United States constitutional limitations and supreme court decisions, to protect the fetus. [M.C.L. § 333.17014; M.S.A. § 14.15(17014).]
The act was signed by the Governor on July 28, 1993, and scheduled to take effect on April 1, 1994.
Plaintiffs in this action are Maryann Mahaffey, president of the Detroit City Council, and several individual physicians who perform abortions. On March 10, 1994, plaintiffs filed a complaint challenging the constitutionality of the act. Plaintiffs claimed that the act violates a woman's right to privacy and due process, violates a physician's right to free speech, and is unconstitutionally vague with regard to what constitutes a "medical emergency." Plaintiffs also claimed that the act was unconstitutional because, in violation of the Headlee Amendment, the Legislature did not enact a specific appropriation for funding the act. Plaintiffs' complaint is predicated entirely on state-law claims. 2
Plaintiffs filed a motion for summary disposition pursuant to MCR 2.116(C)(10), and the Attorney General filed a motion for summary disposition pursuant to MCR 2.116(C)(8). On June 10, 1994, the trial court heard oral argument regarding the parties' respective motions. Plaintiffs argued that the act was unconstitutional and that no genuine issue of material fact remained for trial. The Attorney General, on the other hand, argued that plaintiffs' complaint failed to state a claim upon which relief could be granted because it was based upon the erroneous assumption that Michigan recognized a right to abortion separate and distinct from the federal right. At the close of oral argument, the trial court took the parties' motions under advisement.
On July 15, 1994, the trial court issued a written opinion granting plaintiffs' motion...
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