Michigan’s 24-hour abortion waiting period blocked by Court of Claims 

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Michigan’s 24-hour waiting period before receiving an abortion, as well as mandates to give patients illustrations of fetuses and adoption information, are blocked after a Michigan Court of Claims judge said Tuesday that the laws contradict the state’s constitutional right to an abortion that voters approved of in November 2022.

In the opinion, Judge Sima Patel said that the current 24-hour mandatory waiting period for an abortion in Michigan “exacerbates the burdens that patients experience seeking abortion care” by needlessly increasing the cost of care for patients, increasing the risk that person attempting to make a private medical decision will have to disclose their decision to have an abortion and possibly preventing patients from receiving the method of abortion they would like to have. 

“The 24-hour waiting period forces needless delay on patients after they are able to consent to a procedure, thus burdening and infringing upon a patient’s access to abortion care. This burdens and infringes upon a patient’s freedom to make and effectuate decisions about abortion care,” Patel said in the opinion.

Arguments heard in lawsuit seeking to invalidate Michigan abortion restrictions

The opinion, which grants preliminary injunction blocking the state from enforcing the 24-hour waiting period and some pre-abortion counseling mandates, comes after the Center for Reproductive Rights filed a lawsuit in February on behalf of Northland Family Planning Centers and Medical Students for Choice calling the laws unconstitutional. 

The injunction is in place pending any challenge as the case proceeds.

Center for Reproductive Rights senior staff attorney Rabia Muqaddam said during initial arguments in the case that the 24-hour waiting period and mandatory pre-abortion counseling eat away at a person’s right to autonomy and access to reproductive health care.

“The immense and entirely uncontested medical consensus is that the challenge laws do not serve patient health in any way and actually undermine it,” Muqaddam said. “What is clear from the research is also that these laws impose significant harm. So they delay abortion care. Abortion care is time sensitive. It increases an incremental risk as time passes.”

The lawsuit challenged the state’s mandatory informed consent law, a pre-abortion counseling requirement. But the injunction doesn’t block the entirety of the informed consent law, leaving requirements for oral counseling against coercion and providing topical resources to victims of domestic violence.

However, mandates to provide patients information about live birth risks, illustrations of the fetus, prenatal care information, parenting and adoption resources and offering to show the patient ultrasound images “burden and infringe upon a patient’s right to make and effectuate decisions about abortion care” Patel’s opinion reads.

“This information guides a patient away from the choice of having an abortion by juxtaposing content that is clearly more relevant and suitable to those seeking to complete a pregnancy. Such information certainly impacts the patient’s choice to seek abortion care and encroaches on the patient’s decision-making process,” Patel writes. 

The mandatory nature of the information that the Department of Health and Human Services (DHHS) is required to create and distribute forces patients to ingest information outside of their decision to receive an abortion, “infringing upon a patient’s deliberative process,” she writes.

“The State is metaphorically putting its finger on the scale … The very fact that the DHHS is placed in between the patient and provider, has an impact on how a patient makes and effectuates decisions regarding abortion care,” Patel writes. “This impact, contrary to the argument made by the intervening defendant, is not merely incidental or tangential. The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy.”

Reproductive Freedom for All Michigan Director Shanay Watson-Whittaker applauded the decision.

“Mandatory 24-hour waiting periods are an anti-abortion tactic intended to prevent Michiganders from exercising their constitutional right to seek abortion care,” Watson-Whittaker said in a statement. “We applaud Judge Patel for this decision, which will ensure that people across the state are able to make their own medical decisions — and that Michigan providers are able to provide care without unnecessary, baseless barriers.”

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