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Analyzing the Heartbeat Coalition’s ACLJ Brief

The Heartbeat Coalition has criticized Right to Life of Michigan (RLM)’s position that a heartbeat ban could overturn Michigan’s existing 100% abortion ban that’s been in effect since 1846. We fear a judge could settle these competing laws after Roe v. Wade is overturned by declaring the heartbeat ban to be in effect as the most recently passed law. That means the practical result of passing a heartbeat ban in Michigan could be to legalize abortion through the early weeks of pregnancy.

In criticizing RLM, the Heartbeat Coalition points to a legal analysis from Walter Weber, the co-author of their Ohio heartbeat ban. We disagree with Mr. Weber’s analysis, and our own legal experts in Michigan law agree with our position.

Below is our analysis Mr. Weber’s paper and a response to his criticism of our existing 100% abortion ban.

 

Response to Weber Paper

RLM does not contend the competing heartbeat ban will “repeal by implication” Michigan’s existing stronger law which protects every unborn child—a full 6 to 8 weeks more than a heartbeat ban.

A “savings clause” has been added to all Michigan abortion statutes since 1973 to ensure protection of our current 100% ban: “nothing in this act shall be construed as authorizing any abortion that is illegal under any other provision of state law.”

Roe v. Wade forces Michigan to not prosecute abortionists for performing abortions up to viability—and in most cases after viability because of the “health” exception of Doe v. Bolton. Therefore, we add the “savings clause” to ensure that just because we adopt laws within Roe’s constitutional parameters—like banning partial-birth abortion procedures or enacting informed consent requirements—it doesn’t mean that other abortions under state law are technically legal.

Adding a “savings clause” to a heartbeat ban may not have the same effect. Instead of creating laws within Roe v. Wade’s constitutional parameters, the heartbeat ban creates a competing abortion ban. Which law rules? A complete ban on all abortions at any week? A ban on all abortions after an abortionist finds a heartbeat on an ultrasound machine? Only one can be in effect when Roe v. Wade is overturned. That conflict will likely be settled by a judge, who will likely apply standard rules of statutory construction that says the newer law takes precedence over our older law, thereby allowing legal abortion in state law up to the point of the abortionist detecting a heartbeat.

A heartbeat ban is totally unnecessary because current Michigan law bans all abortions except to save the life of the mother. Adoption of a heartbeat ban is less certain than our current law. Our current law has been upheld post-Roe by our Michigan Supreme Court. Our existing law has been in effect continuously from 1846 to 2019. Every heartbeat ban enacted in other states has been blocked by courts or is in the process of being blocked. As for the Michigan Supreme Court ruling in People v. Bricker, they wrote, “We are duty bound under the Michigan Constitution to preserve the laws of this state and to that end to construe them if we can so that they conform to Federal and state constitutional requirement.” The Bricker ruling provides well-defined clarity, and while not using the word “elastic,” one can infer that meaning.

Michigan’s abortion ban is not vague and does not rely on an abortionist for legal effect. Our Michigan Supreme Court has definitively determined the scope of our ban: “The central purpose of this legislation is clear enough to prohibit all abortions except those required to preserve the health of the mother.” Our statute does not need to be “reinterpreted.” People v. Bricker is a published Michigan Supreme Court decision and definitive unless another law is passed that changes Michigan law—like a heartbeat ban.

RLM agrees that our 100% abortion ban is not an obstacle to passing other laws that clearly target specific harms, thus the reason we have worked tirelessly for 46 years to pass laws like informed consent, parental consent, clinic licensing, etc. However, a heartbeat ban is not targeting specific harms, but rather it would place a law in direct competition with our existing 100% ban. You can’t double ban something. There’s no legal point in writing a law banning murder of people older than 6 when the law already bans all murder. Again, competing laws require a judge to review and apply rules of statutory construction which could rule the legislative intent of the new law supersedes the old law, eliminating our 100% ban.

Relying on courts to reinterpret existing statutes does in fact create legal vulnerabilities!  That is precisely why RLM cannot support a heartbeat ban here in Michigan. Introduction of a heartbeat ban would open the door to the courts to intervene and decide which law will govern Michigan. Again, the rules of statutory construction state that when there are competing state laws, the legislative intent of a newer law generally takes precedence over an older law. This has nothing to do with vagueness or due process and everything to do with introduction of a competing statute. Michigan’s 100% ban has been in place for nearly two centuries, has been upheld by the Michigan Supreme Court, and was used as recently as 2001 to convict an abortionist for an illegal abortion.

The Heartbeat Coalition’s legal paper poses a number of vague “what if” scenarios, but our Michigan Supreme Court decision is very clear—our ban is in place and enforceable. What if the 6th Circuit Court doesn’t uphold a heartbeat ban? What if passing a heartbeat ban in Michigan results in the ban being blocked in the courts and Planned Parenthood and the ACLU claiming legal fees from the taxpayers because of their victory? What if a competition in state law leads to our 100% ban being eliminated? The final “what if” would cost the lives of tens of thousands of unborn children.

If the heartbeat ban is adopted and our complete ban is ruled as obsolete, it would still be legal to kill unborn babies up to 6 to 8 weeks gestation through abortion. That could be as many as 64% of all abortions (or 16,000+ babies) that would still be unprotected in the state of Michigan! The dividing line for illegal abortions depends on how skillful (or not) the abortionist will try to be.

Why would we risk the most restrictive abortion law in the nation when there are 42 states that don’t have a pre-Roe ban? Those states could effectively use a heartbeat ban to improve their legal situations, or better yet, enact a more protective prolife law like in Alabama or Michigan if possible.

RLM has worked for nearly half a century to protect our 100% complete ban on abortions by maintaining prolife majorities in the House and Senate. We could be very close to the point where Roe v. Wade is overturned and our law can go back into full effect. However, the opposite scenario is true. If the composition of the Michigan Legislature should change and pro-abortion majorities were elected in 2020 and 2022, all of our prolife laws could be repealed immediately—including a heartbeat ban.

RLM is focused on our ban of the dismemberment abortion procedure and we would look forward to spending this summer and fall educating voters in Michigan about the reality of abortion. We wish all prolife people from Michigan would make that their top priority, rather than trying to ban something that’s already banned in Michigan in law.

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