A Woman's Right to Know -- Informed Consent

Current Status
The Informed Consent law took effect on September 15, 1999 after a 5-1/2 year court battle. Within months evidence began mounting that abortion clinics were doing all they could to avoid following the spirit and intent of the law. The court settlement allows women to receive the required written information 24 hours in advance by means of "electronic transmission." Abortion clinics subsequently set up Internet websites, telling women they only need to click on the website to comply with the informed consent law. These websites offered no mechanism to ensure that the women actually received the required information. Also, some of the websites contained blatant misrepresentations such as grossly inaccurate fetal development pictures.Furthermore, some clinics began requiring "down payments" to make an abortion appointment when women would come to the clinic to receive the required written materials.

On April 11, 2000, Representative Janet Kukuk introduced House Bill 5548, prohibiting abortion clinics from using their own websites as a means of complying with the informed consent law. The bill directs the Department of Community Health to create a website that enables women to access the information via the Internet. This will ensure that the information received by the women is accurate. The webpage will be anonymous, but will have a confirmation slip women will print off to show their doctor they have seen the information. The required information can also be transmitted via facsimile. The bill prohibits clinics from charging a down payment prior to the 24-hour waiting period expiring.

The House of Representatives considered the bill in the spring of 2000 and gave final approval to the bill on May 30, 2000 by a vote of 67-39. The Senate considered the bill in the fall, and gave approval to the bill on November 30, 2000 by a vote of 24-10. Governor Engler signed the bill on December 31, 2000. The law will take effect on March 27, 2001, giving the Department of Community Health time to activate its official informed consent website.

History
Two companion bills were introduced in the Michigan House and Senate on February 11, 1993, which would foster the right of pregnant women to make an informed decision about abortion. As S.B. 141 did in the 1991 - 92 session, S.B. 384/H.B. 4260 would require that prior to an abortion women receive information about the risks of, and alternatives to, abortion. Women would also receive information on prenatal development and be given 24 hours to review all the information before having the abortion.

April 21, 1993:The Senate passed S.B. 384 by a vote of 26-8. It was then referred to the House Committee on Public Health.

July 7, 1993: The House of Representatives passed S.B. 384 by a vote of 61 - 41. The vote came after 6 hours of debate and the addition of only minor amendments. (More than 60 pro-abortion amendments were offered and defeated).

July 13, 1993: Final legislative action was taken on S.B. 384 as the Senate voted 25-5 to concur in the House amendments and send the bill to Governor Engler for his signature.

July 28, 1993: Governor John Engler signed S.B. 384 into law as Public Act 133.

March 10, 1994: The ACLU on behalf of 27 abortion clinics and women's groups filed suit in Wayne County Circuit Court challenging the Informed Consent law.  The Northland Family Planning Clinic filed a similar lawsuit in U.S. District Court in Flint.

March 19, 1994: U.S. District Court Judge Nancy Edmunds issued a temporary order blocking the enforcement of the law.

March 24, 1994: Wayne County Circuit Court Judge John Murphy issued a temporary restraining order blocking the law that was scheduled to take effect on April 1, 1994.

Jun 10, 1994: Wayne County Circuit Court Judge John Murphy held a preliminary hearing on the informed consent law.

June 20-23, 1994: U.S. District Court Judge Nancy Edmunds held a four day hearing and extended the restraining order on the law for 30 days, saying she would rule during that period.  However, she declined to issue any further ruling after Judge Murphy ordered the law permanently enjoined.

July 15, 1994: Wayne County Circuit Court Judge John Murphy struck down PA 133 of 1993 on two grounds. 1) There is a broader right to abortion under the Michigan constitution than under the federal constitution thus prohibiting the regulations offered under PA 133.  2) Requirements in PA 133 that local health departments provide information about abortion to women who requested it violates the Headlee amendment to the state constitution because the state did not provide funds to compensate local departments for their expenses.  This prompted Attorney General Frank Kelley to bring an appeal to the Michigan Court of Appeals.

May 14, 1997: The Court of Appeals ruled 3-0 in favor of the informed consent law, finding no right to an abortion under Michigan's Constitution.  The ACLU then appealed to the Michigan Supreme Court.

March 17, 1998: The Michigan Supreme Court refused to hear the ACLU's challenge to the state court of appeals decision upholding the informed consent law.

October 26, 1998: A panel of the Michigan Court of Appeals vacated Judge Murphy's injunction that had blocked implementation of the informed consent law since April of 1994.  (The Court found that Judge Murphy had abused his discretion in maintaining the injunction in light of the higher court rulings upholding the law.)

The Michigan Department of Community Health staff started distributing the information required under the law, including diagrams of unborn children that must be given to every woman considering an abortion.

The court injunction on the Informed consent law was finally removed, and the law began to be implemented.  However, as soon as the law began to be implemented, pro-abortion attorneys approached the federal court and asked that the judge reinstate the federal restraining order. 

February 1, 1999: The judge did so, putting the law on hold again.

June 17, 1999: Judge Nancy Edmunds finalized an out-of-court settlement between the abortion clinics and the state, conceding the constitutionality of the law and allowing it to take effect in 90 days. In the settlement, plaintiffs did get several clarifications as to what they specifically needed to do in order to comply with the law. One concession the state made was to allow the required information to be transmitted to women considering abortion "electronically" by fax, email or other means.

September 15, 1999: The law takes effect as agreed upon in the court settlement.

Background Information                                                                     The Michigan Legislature dealt with similar legislation in the 1991-92 session. S.B. 141 (S-2) was passed by the Senate on May 29, 1991. The bill lay dormant in the House Public Health Committee for nearly nine months. After language identical to S.B. 141 was attached by the Senate to H.B. 4280 and returned to the House, hearings on S.B. 141 were held. The House took up the bill on March 5, 1992. A substitute bill (H-4) was adopted on the floor with the minimum 55 votes needed (due to a vacant seat). The bill was then passed.

The Senate rejected the House version, sending the bill to a joint House - Senate conference committee. After numerous conference committee meetings failed to produce a compromise version, the bill died at the end of the session.

Laws similar to that proposed in S.B. 141 had been passed in other states in the early 1980s, but were struck down as unconstitutional by the courts. The U.S. Supreme Court, in its June 1992 Casey v. Planned Parenthood ruling, overturned those previous court decisions and upheld a Pennsylvania informed consent law. S.B. 384 was directly modeled after the Pennsylvania law.

In the Casey decision, the Supreme Court stated that states can require physicians to provide information on risks, alternatives, prenatal development, and establish a mandatory waiting period. While the law was found to require accurate, objective information, the Court went further in noting that "a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest." (Casey v. Planned Parenthood, p.44) Later in 1992 the Supreme Court also affirmed Mississippi's informed consent law by declining to hear a challenge to that statute.