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Michigan Abortion Law Before Roe v. Wade

Lately some have been circulating disinformation about Michigan’s prolife laws, particularly our laws on the books before Roe v. Wade and Doe v. Bolton were decided in 1973.

This is a good opportunity for a short history lesson on how Michigan protected every unborn child throughout our state’s history, and how we can recover that protection moving forward. At the end of this article, you can read the actual pre-Roe v. Wade laws themselves.

The state of Michigan revised all of our criminal laws back in 1846. Included in this general revision was an abortion ban. Michigan in the 19th century—like today—was ahead of the curve regarding abortion.

Before written statutory law rose to greater importance, much of our “law” was common law: a collection of legal traditions decided by judicial principles and precedents. Abortion was generally frowned upon by these common law traditions, but certain realities made common law an imperfect vehicle to protect unborn children. One of those realities was a lack of scientific knowledge of fetal development. For example, it was difficult in 1846 to produce evidence in court showing an unborn child was alive before the point of “quickening,” when the mother first feels the child moving in her womb. Nobody would see fertilization taking place until decades later.

The American Medical Association began to address the issue of abortion, issuing a stern report in 1859 pointing out how the common law and statutory laws in many states were not adequately addressing abortion:

“In accordance, therefore, with the facts in the case, the Committee would advise that this body, representing, as it does, the physicians of the land, publicly express its abhorrence of the unnatural and now rapidly increasing crime of abortion; that it avow its true nature, as no simple offence against public morality and decency, no mere misdemeanor, no attempt upon the life of the mother, but the wanton and murderous destruction of her child.”

Dr. Horatio Storer, one of the fathers of modern gynecology, led the ensuing effort to pass more effective state laws to protect unborn children. Michigan did not update our abortion ban—because we already had it covered. Michigan’s 1846 law made it illegal for any person to perform an abortion in any manner, except to save the life of the mother. Abortions done after the point of quickening carried an enhanced penalty of manslaughter for the abortionist.

In 1931, Michigan’s laws were generally revised once again. Our state’s 1846 abortion ban was improved with greater penalties for abortionists before the point of quickening and if the mother died from the abortion. This updated version remains on the books today.

As abortion supporters began their campaign in the 1960s to legalize abortion, they came to Michigan. They were unsuccessful in the Legislature. In the November 1972 election, there was a ballot proposal to legalize abortion in some cases in Michigan. It failed! A super-majority of 60% Michigan voters elected to keep our complete abortion ban intact. The coalition that led the effort to protect our complete abortion ban was the Voice of the Unborn, which became what is today called Right to Life of Michigan.

In an act of judicial tyranny, the U.S. Supreme Court decided to reverse the vote of our people just a few weeks later. In Roe v. Wade and Doe v. Bolton on January 22, 1973, the U.S. Supreme Court stripped human rights from every single unborn child in America by allowing abortion-on-demand through all nine months of pregnancy.

Thankfully, the Michigan Supreme Court justices in 1973 were not abortion fanatics. In addressing how to handle the conflict between Roe & Doe and Michigan law, they handed down a clear decision in People v. Bricker. They noted, “Proponents of abortion reform took a case to the people last November and lost. It is the public policy of the state to proscribe abortion.”

Forced to adhere to the U.S. Supreme Court’s abuse of authority, the Michigan Supreme Court refused to overturn Michigan’s complete abortion ban. Instead, they ruled that: “except as to those cases defined and exempted under Roe v. Wade and Doe v. Bolton, supra, criminal responsibility attaches.”

People v. Bricker means our complete abortion ban remains on the books and is in effect as much as possible under Roe & Doe. It was used in 2001 to convict an abortionist who performed an abortion after viability who lied about a “health” reason.

This means that once Roe v. Wade is gone, our complete abortion ban can be fully enforced again. If Roe v. Wade is changed at all, our law can be enforced in more cases. Michigan constitutional experts understand this. Our pro-abortion Attorney General Dana Nessel understands this. You don’t need a doctorate or to talk to a lawyer to understand this, simply read our complete abortion ban and People v. Bricker (it’s pretty short).

With Roe v. Wade looking weaker by the day—for the first time since 1973—abortion supporters have introduced legislation to repeal our complete abortion ban. They know the stakes, and prolife people must understand them as well—hundreds of thousands of lives depend on it.

Our state’s highest court has given us a unique game plan, we just need to execute it wisely here Michigan.

Below is a list of relevant abortion bans in Michigan law from before Roe v. Wade.

 

MCL 750.14 – Bans all abortions except to save the life of the mother. The abortionist is guilty of a felony. Only partially enforceable because of Roe v. Wade and Doe v. Bolton. “Miscarriage” and “abortion” are synonyms; “spontaneous abortion” is the medical term for a miscarriage.

“Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.”

 

MCL 750.323 – Increases the penalties for abortions after quickening (interpreted by our courts to be viability, about 24 weeks) from a felony to manslaughter.

“Any person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, be guilty of manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.”

 

MCL 750.15 – Bans sales and advertising of abortion drugs. It has an exception for pharmacists filling prescriptions to allow for the life of the mother exception under 750.14 (which bans all other abortions). After Roe v. Wade is overturned, this law could be used to prosecute Planned Parenthood or other organizations offering mail-order pills for elective abortions.

“Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor. Any drug or medicine known to be designed and expressly prepared for producing an abortion, shall only be sold upon the written prescription of an established practicing physician of the city, village, or township in which the sale is made; and the druggist or dealer selling the same shall, in a book provided for that purpose, register the name of the purchaser, the date of the sale, the kind and quantity of the medicine sold, and the name and residence of the physician prescribing the same.”

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