The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

CHILDREN AND MINORS:

HOSPITALS:

PHYSICIANS AND SURGEONS:

PUBLIC HEALTH:

PUBLIC MONEY:

Use of mifepristone (RU-486) as constituting an abortion
The intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under section 109a of the Social Welfare Act.

The intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under the Parental Rights Restoration Act.

The intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under section 17015 of the Public Health Code.


Opinion No. 7077

March 13, 2001


Mr. James K. Haveman, Jr., Director
Department of Community Health
Lewis Cass Building
Lansing, MI 48913


You have asked whether the administration of the drug mifepristone, sometimes called RU-486, to terminate a woman's pregnancy constitutes an "abortion" under three statutes that regulate abortion in Michigan.

On September 28, 2000, the U.S. Food and Drug Administration (FDA) approved the drug mifepristone (trade name Mifeprex), to be used with misoprostol, a prostaglandin, for the medical termination of a confirmed early intrauterine pregnancy. 21 CFR 314.520. The FDA defines "early" pregnancy as one being 49 days or less, counting from the beginning of the last menstrual period. Under the terms of the FDA's approval, mifepristone will be distributed to physicians who can accurately determine the duration of a patient's pregnancy and detect an ectopic (or tubal) pregnancy. Physicians who prescribe mifepristone must also be able to provide surgical intervention in cases of incomplete abortion or severe bleeding--or they must have made plans in advance to provide such care through others. Id.

Your first question asks if the use of mifepristone to terminate a woman's pregnancy constitutes an "abortion" under section 109 of the Social Welfare Act.

The Social Welfare Act (Act), 1939 PA 280, MCL 400.1 et seq; MSA 16.401 et seq, is an act to provide hospital and medical care for poor persons. Section 109a specifies that "an abortion shall not be a service provided with public funds to a recipient of welfare benefits . . . unless the abortion is necessary to save the life of the mother." Section 109e(1)(a) of the Act defines the term "abortion" as follows:

"Abortion" means the intentional use of an instrument, drug, or other substance or device to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. Abortion does not include the use or prescription of a drug or device intended as a contraceptive.

The drug mifepristone, when intentionally used to terminate a woman's pregnancy for a purpose other than the limited purposes specified above and not as a contraceptive, clearly falls within the Social Welfare Act's definition of "abortion." Courts must adhere to those definitions supplied by statute. Arrigo's Fleet Service Inc v Michigan, 125 Mich App 790, 792; 337 NW2d (1983) (citations omitted). Clear and unambiguous statutory language must be applied by the court as written according to its plain meaning. Dean v Dep't of Corrections, 453 Mich 448, 454; 556 NW2d 458 (1996); Bannan v City of Saginaw, 420 Mich 376, 390; 362 NW2d 668 (1984), reh den 421 Mich 1202 (1985).

It is my opinion, therefore, in answer to your first question, that the intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under section 109a of the Social Welfare Act.

Your second question asks if the use of mifepristone to terminate a woman's pregnancy constitutes an "abortion" under the Parental Rights Restoration Act.

The Parental Rights Restoration Act (PRRA), 1990 PA 211, MCL 722.901 et seq; MSA 25.248(101) et seq, is a voter-initiated act requiring, with limited exceptions, parental consent for abortions performed on unemancipated minors. Section 2(a) of the PRRA defines the term "abortion" as follows:
"Abortion" means the intentional use of an instrument, drug, or other substance or device to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. Abortion does not include the use or prescription of a drug or device intended as a contraceptive.

The drug mifepristone, when intentionally used to terminate a woman's pregnancy for a purpose other than the limited purposes specified above and not as a contraceptive, clearly falls within the PRRA's definition of "abortion."

It is my opinion, therefore, in answer to your second question, that the intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under the Parental Rights Restoration Act.

Your third question asks if the use of mifepristone to terminate a woman's pregnancy constitutes an "abortion" under section 17015 of the Public Health Code.

The Public Health Code (Code), 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, is an act to protect the public health and to regulate occupations, facilities, and agencies affecting the public health. Section 17015 of the Code, added by 1993 PA 133, requires informed written consent by the patient before an abortion and requires that a physician make certain disclosures to the patient before performing an abortion. Subsection 2(a) of Code section 17015 defines the term "abortion" as follows:

"Abortion" means the intentional use of an instrument, drug, or other substance or device to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. Abortion does not include the use or prescription of a drug or device intended as a contraceptive.

The drug mifepristone, when intentionally used to terminate a woman's pregnancy for a purpose other than the limited purposes specified above and not as a contraceptive, clearly falls within the Code's definition of "abortion."

It is my opinion, therefore, in answer to your third question, that the intentional use of mifepristone to terminate a woman's pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus, and not as a contraceptive, constitutes an "abortion" under section 17015 of the Public Health Code.



JENNIFER M. GRANHOLM
Attorney General