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. Democrats in the State House and Senate recently introduced legislation to repeal this law. In a peculiar development, some Republican lawmakers seek to enact a weaker version of the existing law. Mirroring a ballot initiative launched by a new group of activists, the proposed weaker version bans abortion after a medical professional detects a fetal heartbeat.
Michigan – before and after Roe v Wade
Beginning with Roe v Wade, U.S. Supreme Court decisions limit states from enforcing bans on abortion early in a pregnancy. Before Roe, Michigan banned anyone from performing any abortions, except to save the life of the mother. Thereafter, the Michigan Supreme Court reviewed the State’s abortion restrictions in light of the U.S. Supreme Court ruling in Roe. These post-Roe cases upheld Michigan’s law banning abortions within the parameters set by the U.S. Supreme Court. Thus, if the U.S. Supreme Court reverses Roe, the ban on performing early term abortions included within Michigan’s existing law is enforceable. This includes any abortion that stops a beating heart – or any abortion that occurs even before the child’s heart begins to beat. Fearing the U.S. Supreme Court might reverse Roe soon, abortion rights activists, therefore, seek to repeal Michigan’s law. From their perspective, that makes sense.
MI Heartbeat Initiative Seeks to Enact Weaker Version of Law that Already Exists
If you are pro-life, though, proposing a weaker heartbeat version of a law that already exists makes no sense. Michigan’s existing law already makes it a felony to perform an abortion at any time. The new proposal similarly makes it a felony to perform an abortion. The new proposal, however, specifies the prohibition begins after detection of a heartbeat. Thus, the new proposed initiative addresses an identical subject but omits the words used in the broader existing statute, while adding a specific time point in which a chargeable felony occurs.
Good Governance and the Potential for a Statutory Construction Catastrophe
Good governance under the rule of law matters. Given Michigan’s broad statutory scheme, proposing a competing weaker proposal makes no sense as a matter of law and public policy. This is especially so given the rules of statutory construction courts apply when faced with two competing statutes governing similar conduct on a similar subject. Normally, courts presume a different legislative intent when the legislature omits words used in a previous law involving a similar subject. Moreover, if a new statute allows what another prohibits, the most recent statute controls and the more specific controls over the general. Here the more recent statutory heartbeat proposal omits the general language in the pre-existing law making it a felony to perform an abortion. Then, the more recent statutory proposal includes more specific language making the detection of a heartbeat the starting point of permissible enforcement. Perhaps attempting to overcome this statutory construction catastrophe, the competing weaker proposal states its provisions do not preclude enforcement of existing law. Because the proposed initiative injects such confusing irrationality into Michigan’s statutory scheme though, it is impossible to predict how a court might resolve the problem of two duly enacted statutes governing similar conduct on a similar subject.
Moreover, if a new statute allows what another prohibits, the most recent statute controls and the more specific controls over the general. Here the more recent statutory heartbeat proposal omits the general language in the pre-existing law making it a felony to perform an abortion. Then, the more recent statutory proposal includes more specific language making the detection of a heartbeat the starting point of permissible enforcement. Perhaps attempting to overcome this statutory construction catastrophe, the competing weaker proposal states its provisions do not preclude enforcement of existing law. Because the proposed initiative injects such confusing irrationality into Michigan’s statutory scheme though, it is impossible to predict how a court might resolve the problem of two duly enacted statutes governing similar conduct on a similar subject.
Conclusion
For those who care about protecting life in Michigan, now is not the time to sit idle. Nor is it a time for well-meaning reckless irrationality. It makes no sense to put Michigan’s existing law at risk by senselessly infusing a weaker competing heartbeat law into our State’s strong pro-life statutory scheme.
Prof. William Wagner is Distinguished Professor Emeritus (Law). He regularly represents pro-family and pro-life interests in the U.S. Supreme Court.
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