Parental Consent for Abortion Law

P.A. 211 of 1990 –¬†Citizen Initiative Petition
M.C.L. 722.901-908
Current Status
P.A. 211 was brought to the legislature via a citizen initiative petition and approved in both the House and Senate on September 12, 1990 and was put into effect on March 28, 1991.

This legislation prohibits a person from performing an abortion on a minor without first obtaining the written consent of the minor and one of the parents or the legal guardian of the minor. If a parent or the legal guardian is not available or refuses to give his or her consent, or if the minor elects not to seek consent of a parent or legal guardian, the minor may petition the probate court.

A minor may file a petition for waiver of parental consent in the probate court of the county in which the minor resides. The county in which the minor resides means the county in which the minor’s residence is located or the county in which the minor is found. The probate court will grant a waiver of parental consent if it finds the minor is sufficiently mature and well enough informed to make the decision regarding abortion independently of her parents or legal guardian. The waiver would be in the best interest of the minor if a minor reveals to the probate court that she is the victim of sexual abuse, and that her pregnancy is, or may be, the result of sexual abuse. The probate court will report it to the department of social services or a law enforcement agency pursuant to the child protection law.

On March 30, 1993, Kalamazoo Circuit Judge Phillip Schaefer lifted his restraining order against Public Act 211 (M.C.L. 722.901), concurrent with P.A. 244 of 1992 taking effect. The original law had been suspended since August 5, 1992, when Judge Schaefer found the law to be unconstitutionally vague with regard to the definition of a medical emergency. Public Act 244, which amended the emergency definition to address Judge Schaefer’s concerns, was passed 69-35 in the House and 22-6 in the Senate.

The general thrust of the law requires physicians to obtain consent of a parent or guardian before performing an abortion on a minor. The minor may seek a waiver of parental consent through the probate court if circumstances in the home warrant (abuse, etc.).

In the spring of 2000, Representatives A.T. Frank and Steve Pestka offered an amendment to the annual appropriation bill for the state’s judiciary. The amendment to H.B. 5279 requires the state court administrator to assemble a report on the use of the judicial bypass option under the Parental Consent law. The report is to cover the years 1997-1999, and indicate how many bypass waivers were sought, granted, denied, and the ages of the girls petitioning for the waivers. The report is expected later in 2001.

P.A. 211 of 1990 was enacted by majority votes in the Michigan House (61-40) and Senate (28-9) on September 12, 1990. The initiative legislation was presented to both chambers after the State Board of Canvassers certified that a sufficient number of signatures had been obtained on the initiative petitions. Right to Life of Michigan obtained over 333,000 signatures in under 100 days. Approximately 192,000 valid signatures of registered voters were needed.

The language which is now P.A. 211 of 1990 was developed through the deliberations of the Michigan Legislature on House Bill 5103 during the 1989-90 session. That bill was passed (65-39) by the House of Representatives on December 6, 1989. The Senate amended the bill, removing a House floor amendment, and passed it (29-8) on February 14, 1990. The Senate had passed a similar bill, S.B. 513, earlier in 1989, which died in a House committee. The House concurred (65-42) in the Senate amendment on February 21, 1990. Governor James Blanchard vetoed the bill on February 23, 1990. The petition drive to present H.B. 5103 as initiative legislation was launched on March 15, 1990.

School Involvement In Parental Rights
During floor debate on H.B. 5103, (December 6, 1989) Representatives Jonker, Profit, Johnson, Gubow, and Gilmer offered an amendment adding Section 9 to the bill. This section required that students in 6th through 12th grades be notified of the existence of the law, and information about contacting the probate court. The state department of education would be responsible for developing a standardized form which every school district would use to provide the information to students.

This floor amendment was opposed by Right to Life of Michigan. House members adopted the amendment on a vote of 70-24. When H.B. 5103 was considered in the Michigan Senate, Right to Life of Michigan urged senators to amend the bill to remove Section 9. No such action was taken. The bill was eventually passed and vetoed by Governor James Blanchard on February 23, 1990.

On March 15, 1990, Right to Life of Michigan launched a citizens initiative petition drive to bring this same legislation before the legislature for enactment, absent any role by the governor. The language of the initiative legislation was identical to that of H.B. 5103, with the exception of some technical changes. The provisions of Section 9 in the initiative and H.B. 5103 were identical without exception. The petition drive resulted in P.A. 211 being enacted and becoming effective on March 28, 1991.

A court challenge was brought to the law by Planned Parenthood and the ACLU in February 1991. After a four-day evidentiary hearing, Kalamazoo circuit judge Philip Schaefer denied a request for an injunction prohibiting the law from taking effect. Judge Schaefer’s March 29 ruling was appealed to the Michigan Court of Appeals, which also rejected a request for an injunction. The ACLU then brought a full constitutional challenge to the law which was also heard by Judge Schaefer.

On May 8, 1991, the Senate voted 34-0 in favor of S.B. 243, which would remove Section 9 from the law. The House of Representatives also voted in favor of S.B. 243 by a 90-15 margin on June 25, 1991. Senate Bill 243 became immediately effective as Public Act 80 of 1991 with Governor John Engler’s signature on July 18. Section 9 of P.A. 211 is no longer part of Michigan law.

On August 5, 1992, Judge Schaefer ordered P.A. 211 enjoined on the basis that the definition of a medical emergency, which allows for an exemption of parental consent, was unconstitutionally vague. In his opinion Judge Schaefer suggested that the language of the definition required legislative amendment to be found constitutional.

House Bill 6099 was introduced on September 16, 1992 with 55 co-sponsors. The bill provided the necessary amendments to the emergency definition and was passed by the House on September 30, and by the Senate on November 5. The bill was signed by Governor Engler on November 18 and became P.A. 244 of 1992.