STATE OF
MIKE COX, ATTORNEY GENERAL
LEGAL BIRTH DEFINITION ACT: STATUTES: PHYSICIANS AND SURGEONS: PROSECUTORS: |
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
State Senator
The Capitol
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
We
are duty bound under the
The Court
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."
[Bricker, 389
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.
Higuera, 244
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.
[Higuera, 244
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[2] 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[3] until the point of complete expulsion or
extraction from the mother's body. [MCL
333.1085(d).]
Under the LBDA, when
any "anatomical part"[4]
of a "live"[5]
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).
Before
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.
This reading
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,
461
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[7] 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).
The Sixth
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
that "
The immunity
provisions contained in the LBDA are like the
The primary
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).
As
MIKE COX
Attorney General
[1] 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.
[2] The language at issue here was originally passed by
the Legislature as Enrolled Senate Bill 395 but was vetoed by the Governor on
[3]
"Introitus" is defined in Stedman's
on-line medical dictionary as "[t]he entrance into a canal or hollow
organ, as the vagina." http://216.251.232.159/semdweb/internetsomd/ASP/1529851.asp.
[4]
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).
[5]
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).]
[6] 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.
[7] 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).
[8] 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
also
[9] 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).