MIKE COX, ATTORNEY GENERAL
LEGAL BIRTH DEFINITION ACT:
PHYSICIANS AND SURGEONS:
Application of Legal Birth Definition Act to abortion procedures
The Legal Birth Definition Act, MCL 333.1081 et seq, which defines when a person shall be considered born for all purposes under the law, has the effect of banning, with certain exceptions, those dilation and extraction (D & X) abortion procedures that require the killing of a "perinate" as defined in the act. The Legal Birth Definition Act does not have the effect of banning the dilation and evacuation (D & E) abortion procedure.
A physician or physician's agent is immune from criminal, civil, or administrative liability for performing a dilation and extraction (D & X) abortion procedure when, in the "physician's reasonable medical judgment and in compliance with the applicable standard of practice and care," it is necessary to protect the life or health of the mother as set forth in section 3(2) of the Legal Birth Definition Act, MCL 333.1083(2).
Prosecuting attorneys are directed to employ the interpretation of the Legal Birth Definition Act contained in this opinion.
Opinion No. 7174
Honorable Cameron Brown
On behalf of the Hillsdale County Prosecuting Attorney, you have asked two questions regarding the application of the Legal Birth Definition Act (LBDA), MCL 333.1081 et seq, to the performance of abortion procedures. You ask: (1) whether the LBDA bans partial-birth abortions and any other abortion procedures; and (2) whether there are circumstances under which application of the LBDA will not result in criminal or other liability.
When interpreting the language of a
statute, the primary goal is to give effect to the Legislature's intent. Wayne County
v Hathcock, 471
With respect to
statutes that regulate and prohibit abortion procedures, the Michigan Supreme
Court has expressly required that such laws be read in a manner that preserves
their constitutionality. Bricker, 389 Mich at 528-529. See also People
v Higuera, 244
are duty bound under the
reiterated the principle that
"A legislative act may be entirely valid as to some classes of cases, and clearly void as to others.
* * *
In any such case the unconstitutional law must operate as far
as it can . . . . If there are any
exceptions to this rule, they must be of cases only where it is evident, from a
contemplation of the statute and of the purpose to be accomplished by it, that
it would not have been passed at all, except as an entirety, and that the
general purpose of the legislature will be defeated if it shall be held valid
as to some cases and void as to others."
Employing this principle, the Court
affirmed the conviction of a non-physician who performed an abortion,
construing MCL 750.14 to "mean that the prohibition of this section shall
not apply to 'miscarriages' authorized by a pregnant woman's attending
physician in the exercise of his medical judgment; the effectuation of the
decision to abort is also left to the physician's judgment; however, a physician
may not cause a miscarriage after viability except where necessary, in his
medical judgment, to preserve the life or health of the mother."
More recently, in Higuera, the Court of Appeals employed
this same approach in sustaining the constitutionality of MCL 750.14 as applied
where there were allegations that a doctor performed an abortion on a 28-week-old
fetus without a medical reason for doing so.
After Bricker was decided in 1973, the Legislature enacted various statutes regulating the performance of abortions . . . but did not revise MCL 750.14 . . . .
* * *
We think it clear that
in enacting those statutes after Bricker,
the Legislature intended to regulate those abortions permitted by Roe and Doe,
and Bricker, and did not intend to repeal the general prohibition of abortions
to the extent permitted by the federal constitution, as
construed by the United States Supreme Court.
In short, the courts give effect to the Legislature's intent in abortion cases but in a manner that strives to conform abortion statutes to constitutional requirements.
Applying these principles, the LBDA defines
when a person shall be considered "legally born" for the purposes of
"Perinate" means a live human being at any point after which any anatomical part of the human being is known to have passed beyond the plane of the vaginal introitus until the point of complete expulsion or extraction from the mother's body. [MCL 333.1085(d).]
Under the LBDA, when any "anatomical part" of a "live" human being is known to have passed the "plane of the vaginal introitus," the human being, or "perinate," gains the protection of the law as "a legally born person for all purposes under the law." MCL 333.1083(1). While the statute does not by its own terms ban any type of abortion procedure, the practical effect of the LBDA on abortion procedures is that any physician who performs an abortion that results in the injury or death of a "perinate" would be subject to criminal prosecution. The LBDA makes a specific exception for "performing any procedure that results in injury or death of a perinate while completing the delivery" that in the "physician's reasonable medical judgment and in compliance with the applicable standard of practice and care" is necessary to "save the life of the mother" or to "avert an imminent threat to the physical health of the mother." MCL 333.1083(2)(b)(i) and (ii).
analyzing the statutory language, it is necessary to look at the applicable constitutional
law because the Legislature is presumed to enact legislation consistent with such
principles. Pulver, supra; Detroit United Railway, supra; Bricker, supra; Higuera, supra. Recently, the United States Supreme Court
ruled that a
Applying Carhart, the United States Court of Appeals for the Sixth Circuit upheld an Ohio statute that prohibited only the "dilation and extraction" abortion procedure, known as the D & X abortion procedure, and not the D & E procedure. See Women's Medical Professional Corp v Taft, 353 F3d 436 (CA 6, 2003). See also Carhart, 530 US at 951 (O'Connor, J., concurring, stated that "a ban on partial-birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view"). In examining the Ohio statute in light of Carhart, the Sixth Circuit provided definitions of both the D & E procedure and the D & X procedure:
Dilation and Evacuation (D & E) procedure:
As performed late in the second trimester, the abortion procedure commonly referred to as dilation and evacuation, or "D & E," begins with dilation of a woman's cervix. Once sufficient dilation is achieved, the physician reaches into the woman's uterus with an instrument, grasps an extremity of the fetus, and pulls. When the fetus lodges in the cervix, the traction between the grasping instrument and the cervix causes dismemberment and eventual death, although death may occur prior to dismemberment. The process continues until the entire dead fetus has been removed, piece-by-piece, from the woman's uterus. [Taft, 353 F3d at 439; citations omitted.]
Dilation and Extraction (D & X) procedure:
The physician initiates the D & X or partial birth abortion procedure by dilating a woman's cervix, but to a greater degree than in the traditional D & E procedure. Once the physician achieves sufficient dilation, the manner in which the abortion proceeds depends upon the presentation of the fetus. . . . In a breech extraction [where the fetus presents in a feet first position], the physician partially delivers the fetus through the mother's cervix up to a point that allows the physician to access the fetus's head, which is inside the mother, while stabilizing the fetus's body, which is outside the mother. Then, in order to collapse the fetus's skull (so that it will pass easily through the cervix), the physician forces a pair of scissors into the base of the skull, enlarges the opening and evacuates the contents with a suction catheter. The abortion concludes with the removal, in a single pass, of the fetus's intact, dead body. If the fetus presents head first (a cephalic presentation), the doctor first collapses the fetus's exposed skull by breaching and compressing the [head] with the forceps' jaws, inserting a finger . . . , or piercing the [head] with a sharp instrument, such as a tenaculum or a large-bore needle. The doctor then suctions out the fetus's skull contents, if necessary, and completes the delivery of the fetus from the mother's body, whole and intact, in a single pass. [Taft, 353 F3d at 439-440; citations and quotation marks omitted.]
As the Sixth Circuit noted, these terms "have a
generally understood meaning, regularly relied upon by courts, litigants, medical
experts, and legislatures operating in this field of law." Taft, 353
F3d at 439. In upholding the constitutionality of the
Significantly, the Sixth Circuit emphasized that "courts have explained repeatedly that the principal distinction between D & X and D & E is intactness: D & X maximizes intactness and D & E requires dismemberment prior to removal of the fetus." Taft, 353 F3d at 452 (emphasis in original), citing Carhart, 530 US at 927, 939 and Women's Medical Professional Corp v Voinovich, 130 F3d 187, 199 (CA 6, 1997).
With this understanding of the federal constitutional rules, the Michigan Legislature enacted the LBDA in 2004. In order to determine which abortion procedures are subject to criminal prosecution as a result of passage of the LBDA, the question then is which abortion procedure requires the injury or death of a perinate. Therefore, the crucial statutory language is found in the provision defining the term "perinate" and related terms.
Given the established definitions of the D & X and D & E procedures described in Taft and Carhart and the prevailing constitutional principles, Michigan's LBDA prohibits the D & X procedure only. The definition of "perinate" spans the period from the time an "anatomical part" of a live and intact fetus passes beyond the plane of the vaginal introitus to the time the perinate is completely expelled or extracted from the mother's body. MCL 333.1083(2).
As explained in Carhart and Taft, the D & E procedure requires dismemberment or disarticulation of the fetus and removal of the dead fetus "piece-by-piece" from the woman's uterus – there is no intact extraction of the fetus. Consequently, in a D & E procedure as described by Taft and Carhart, the fetus would never achieve the status of a perinate under the statute. The statute specifically excludes from its definition of "anatomical part" a part of the fetus that has been "severed from the [fetus's] body." MCL 333.1085(a). In contrast, the D & X procedure, as previously defined, involves the partial extraction of a live and intact fetus for the sole purpose of intentionally killing it, which under the LBDA would be the killing of a "perinate." The LBDA cannot be read, however, to place any restrictions on actions taken before an anatomical part of an intact, live fetus passes beyond the plane of the vaginal introitus of the mother's body.
of the LBDA is consistent with the legislative history of the statute. The statute was known as an effort to ban
"partial-birth abortions," which is the common term used for the D &
X procedure. See Senate Fiscal Agency
Analysis, SB 395,
[T]he bill [SB 395] effectively would prohibit the practice of
partial-birth abortion. . . . Partial-birth abortion is a gruesome
procedure whereby a nearly full-term fetus is partially delivered and then
killed by means of having its skull crushed or incised before the delivery is completed.
. . . This extreme practice should not
be tolerated in a civilized society and violators should be punished
appropriately. While the bill does not
refer to partial-birth abortion by name, it specifies that a perinate would be considered a legally born
person for all purposes under the law.
[Senate Fiscal Agency Analysis, SB 395,
This description corresponds to the definition of the D & X procedure in Taft, 353 F3d at 439-440, and Carhart, 530 US at 927-928.
Moreover, interpreting the LBDA as
prohibiting D & X procedures that require the killing of a perinate, and
not the D & E procedure, is consistent with the rule requiring that statutes
be accorded the presumption of constitutionality. See McDougal,
Any application of the statute to constitutionally
protected methods of abortion, such as the D & E procedure, is void under Bricker.
It is my opinion, therefore, in answer to your first question, that the Legal Birth Definition Act, MCL 333.1081 et seq, which defines when a person shall be considered born for all purposes under the law, has the effect of banning, with certain exceptions, those dilation and extraction (D & X) abortion procedures that require the killing of a "perinate" as defined in the act. The Legal Birth Definition Act does not have the effect of banning the dilation and evacuation (D & E) abortion procedure.
Your second question asks whether there are circumstances under which application of the LBDA will not result in criminal or other liability. Section 3 of the statute provides that a physician or agent of a physician is immune from "criminal, civil, or administrative liability for performing any procedure that results in injury or death of a perinate while completing the delivery of the perinate" under any of the following circumstances:
(a) If the perinate is being expelled from the mother's body as a result of a spontaneous abortion.
(b) If in that physician's reasonable medical judgment and in compliance with the applicable standard of practice and care, the procedure was necessary in either of the following circumstances:
(i) To save the life of the mother and every reasonable effort was made to preserve the life of both the mother and the perinate.
(ii) To avert an imminent threat to the physical health of the mother, and any harm to the perinate was incidental to treating the mother and not a known or intended result of the procedure performed. [MCL 333.1083(2)(a) and (b).]
The phrase "imminent threat to the physical health" is defined to mean "a physical condition that if left untreated would result in substantial and irreversible impairment of a major bodily function." MCL 333.1085(b).
Circuit in the Taft case upheld the
constitutionality of the
[N]o person shall knowingly perform a partial birth procedure on a pregnant woman when the procedure is not necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function. [Taft, 353 F3d at 440, citing Ohio Rev. Code Ann. § 2919.15.1(B), (C); emphasis added.]
The Sixth Circuit concluded
provisions contained in the LBDA are like the
difference between the
Where the physician concludes that the mother's life or health makes it medically necessary to perform an act that will injure or kill the perinate, the physician must first consider other reasonably safe alternatives, if any, before doing so. MCL 333.1083(2)(b)(i) and (ii). In other words, the physician must look to ensure the life or physical health of the mother without harming the perinate where medically possible. These considerations do not, however, prevent a physician from performing a procedure that may directly harm or kill the perinate where in the reasonable medical judgment of the physician it is necessary to safeguard the mother's life or health. See Carhart, supra; Taft, supra.
It is my opinion, therefore, in answer to your second question, that a physician or physician's agent is immune from criminal, civil, or administrative liability for performing a dilation and extraction (D & X) abortion procedure when in the "physician's reasonable medical judgment and in compliance with the applicable standard of practice and care," it is necessary to protect the life or health of the mother as set forth in section 3(2) of the Legal Birth Definition Act, MCL 333.1083(2).
 MCL 750.14 states:
Administering drugs, etc., with intent to procure 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.
 The language at issue here was originally passed by
the Legislature as Enrolled Senate Bill 395 but was vetoed by the Governor on
 "Introitus" is defined in Stedman's on-line medical dictionary as "[t]he entrance into a canal or hollow organ, as the vagina." http://220.127.116.11/semdweb/internetsomd/ASP/1529851.asp.
 The statute defines an "[a]natomical part" as any "portion of the anatomy of a human being that has not been severed from the body, but not including the umbilical cord or placenta." MCL 333.1085(a).
 The statute defines "[l]ive" as when the perinate demonstrates 1 or more of the following biological functions:
(i) A detectable heartbeat.
(ii) Evidence of breathing.
(iii) Evidence of spontaneous movement.
(iv) Umbilical cord pulsation. [MCL 333.1085(c).]
 In all other cases, whether abortion-related or not, the LBDA would only apply to actions taken after a fetus has achieved the status of a "perinate" as defined by the statute. For example, the LBDA would not apply to the killing of a fetus where the fetus presents head first and no "anatomical part" of the intact, live fetus has passed beyond the plane of the vaginal introitus.
 As used in this opinion, "agent" means "an individual performing an act, task, or function under the delegatory authority of a physician." MCL 333.1083(2).
 See Letter Opinion of the Attorney General to
Representative D. J. Jacobetti, dated May 1, 1979, p 2. In his letter, former Attorney General Frank
Kelley explained that "[w]hen advising State agencies and prosecutors, I
consider such advice as binding whether in letter form or in the form of an
opinion to be published." See
 This bar to prosecution is based on the criminal doctrine of entrapment by estoppel. "To determine the availability of the defense, the court must conclude that (1) a government must have announced that the charged criminal act was legal; (2) the defendant relied on the government announcement; (3) the defendant's reliance was reasonable; and (4) given the defendant's reliance, the prosecution would be unfair." United States v Levin, 973 F2d 463, 468 (CA 6, 1992).