Michigan judge strikes down 24-hour abortion wait as unconstitutional

• A Michigan Court of Claims judge rules the state’s mandatory 24-hour waiting period to obtain an abortion is now unconstitutional
• Efforts to curb who performs abortions, as well as what women are informed of prior to their abortion, were also deemed unconstitutional
• The laws were labeled as burdensome and infringed on a woman’s right to reproductive freedom under a 2022 statewide ballot initiative

LANSING — A Michigan judge on Tuesday struck down a series of state abortion restrictions, including a 24-hour waiting period, ruling they “burden and infringe” upon the state’s constitutional right to reproductive freedom. 

The case before Court of Claims Judge Sima Patel was the first major test of Michigan abortion laws since voters approved a 2022 ballot proposal that enshrined reproductive rights into the state constitution. 

Patel had suspended three abortion laws last summer, ruling plaintiffs were likely to prevail in the case. She heard oral arguments last month and issued an 83-page opinion officially ruling the laws unconstitutional late Tuesday.

Among them, a 24-hour waiting period she said “forces needless delay on patients after they are able to consent to a procedure, thus burdening and infringing upon a patient’s access to abortion care.”

She found “no correlation between having a patient wait 24 hours” and better physical or psychological outcomes, writing that there is “no evidence that the delay is used by providers to review a patient’s medical history to ensure the safety of the procedure.”

Patel, who was appointed in 2022 by Gov Gretchen Whitmer, also struck down a requirement for mandatory uniform consent prior to an abortion, as well as a ban on advanced practice clinicians performing abortions, ruling both were also unconstitutional under the 2022 proposal.

The ruling could be appealed, but it’s not clear who would do so: Michigan Attorney General Dana Nessel is a named defendant in the case but had opposed the laws, although state attorneys were assigned to defend them in court.

Genevieve Marnon of Right to Life of Michigan, which supported the abortion regulations, called Tuesday's ruling "bad news" for women. 

“Removing standardized informed consent about abortion procedures, possible complications, and alternatives to abortion is a disservice to women," she told Bridge Michigan in a statement.  "The injunction demonstrates how radical and abortion obsessed our state has become.” 

Related:

• Michigan judge suspends abortion law mandating 24-hour wait
• Planned Parenthood’s Michigan closures leave UP without an abortion clinic
• How many abortions in Michigan? The state can’t say under new law

But abortion rights advocates praised the decision.

Whitmer, a Democrat, said in a statement that she was “overjoyed” by the ruling, calling the abortion restrictions that Patel struck down an “overreach that infringes on our constitutional right to make our own reproductive health decisions.”

“This decision makes clear what we already knew: a constitutional right must also be accessible,” state Rep. Laurie Pohutsky, D-Livonia, wrote on social media. 

In addition to striking down the 24-hour waiting period, Patel ruled the state’s mandatory uniform consent law was unconstitutional on the basis that there is “no reason to deviate from individualized informed consent.”

Under that Michigan law, a woman had to be informed of the danger abortion posed to her body, be given an illustration and description of the fetus and given information regarding parenting and abortion coercion — even if she had no intent of continuing her pregnancy.

But “overwhelming medical consensus” indicated “mandatory informed-consent schemes, enacted to persuade people to continue pregnancies despite their personal circumstances and wishes, do not serve patient health and decision-making and are contrary to the standard of care,” Patel wrote in her ruling. 

The third law Patel struck down had barred abortions by advanced practice clinicians, a term generally used to refer to nurses and physician assistants who have advanced training and education beyond the basic nursing or medical degree.

In oral arguments, those in favor of overturning the ban argued the nurses already managed miscarriages by using the same medical protocols involved in abortion care. Those against, however, said limiting the number of individuals eligible to perform abortions ensured patients receive high quality medical care. 

Patel did not accept that argument, ruling that the provider ban “arbitrarily limits abortion providers to physicians only, and burdens and infringes upon a patient’s freedom to make and effectuate decisions about abortion care.”

Anti-abortion advocates, however, came away with at least one win in the case: A provision in state law pertaining to mandatory screenings to ensure a woman isn’t being coerced into an abortion will remain active under the ruling by Patel, who called it a “necessary step in abortion care.”

“Contrary to the position of some witnesses, nothing in the statutes requires providers to ask specific or direct questions during a coercion screening,” she wrote. “The statutes permit providers to tailor their questions and interact with patients in an organic way.”