Michigan Abortion Law Faces Legal Challenge

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A groundbreaking Michigan law called the legal birth abortion act was argued in federal court this week. The state says it prevents late-term abortions by giving new status and rights to a fetus. Opponents say the law contradicts US Supreme Court rulings and would ban virtually all abortions in the state. NPR's Kathy Lohr reports.

KATHY LOHR reporting:

This is the third time since 1996 that Michigan legislators have tried to outlaw certain types of abortion procedures that pro-life activists call partial-birth abortions. A judge threw out the earlier versions as unconstitutional, but in 2004, after the governor vetoed the bill, Right to Life of Michigan helped form a coalition to circumvent the governor. Legislative director Ed Rivet.

Mr. ED RIVET (Legislative Director, Right to Life of Michigan): It was our version of the people overriding the governor. And we call it the people's override because we need to just collect the signatures and then have the same strong legislative majorities approve the bill and then it became law.

LOHR: The Legal Birth Definition Act was to take effect last March, but a challenge to it was heard in federal court last week. The law is significant because it's unlike any other state law. To ban abortions, it sets up a new class of person. It calls a fetus in the process of being born as it's being delivered a perinate. It then gives the perinate new rights under the law. Rivet says the courts have not fully explored this argument.

Mr. RIVET: When does the state have a compelling or, in fact, even overriding interest in saying, `We now have a person we can protect here,' and the reason we can is because, well, they're born? It's not an unborn foot, it's not a fetal foot; it's a neonatal foot once it's out. And what we're asking the court to confront is the constitutional status of that transitional person who, in fact, is more a born person under the 14th Amendment than unborn fetus non-person under Roe vs. Wade's parameter.

LOHR: But some legal experts say the Michigan law is a direct attack on the Supreme Court's logic and their decisions which have upheld a woman's right to abortion. Jamin Raskin is a constitutional law professor at American University. He argues Michigan legislators have gone too far.

Dr. JAMIN RASKIN (American University): They essentially want to grant constitutional and civil protection to fetuses. So, you know, obviously, there's a lot of people who would agree with that, but obviously, there are a lot of people who would disagree with it. And in any event, it cuts against the meaning of our jurisprudence, which is that until the point of fetal viability outside of the mother's body, the woman has a right to an abortion. And the Supreme Court said in 1973 in Roe vs. Wade that it would not decide the essentially metaphysical question of when life begins.

LOHR: Those who oppose Michigan's law say there are other problems with it. Laws that limit abortions must provide an exception for the mother's health. This law allows abortions if there are efforts to save both the life of the mother and the life of the fetus. But the law goes even further. Pro-choice activists say it doesn't apply to just so-called partial-birth abortions but to all abortions. The law says a procedure can only be done if harm to the fetus, or what it calls the perinate, is not intentional. Talcott Camp is with the ACLU Reproductive Freedom Project.

Ms. TALCOTT CAMP (Reproductive Freedom Project, ACLU): So a physician can't do it if he or she knows that doing it will harm the embryo or fetus. We're talking about pre-viability procedures. We're talking about very early procedures. So, of course, removing the embryo or fetus from the woman's body would harm it. It can't survive outside the woman's body. Therefore, the health exception in this law is a sham.

LOHR: Doctors throughout Michigan strongly oppose the law. They fear it would leave them open to severe criminal penalties whenever they perform an abortion for whatever reason.

Kathy Lohr, NPR News.

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