Democratic leaders in Michigan believe they’re within reach of passing what would be the largest change to abortion in the state since voters passed Proposal 3 last November: the Reproductive Health Act.
The package of bills would remove many of the abortion restrictions still on the books in Michigan, even after the right to an abortion was enshrined in the state constitution last year. That includes removing a 24-hour mandatory waiting period and online informed consent form, which abortion providers say leads to at least 150 patients getting turned away from their appointments each month.
But the political battles - including within Democrats’ own ranks - have already led to casualties: last week, the state Senate dropped a measure that would have allowed Medicaid to cover abortions, after it became clear the party didn’t have the votes for it.
Now the legislation is in the state House, where Democrats have such a slim majority, they can’t afford to lose a single vote. And at least one Democrat, state Representative Karen Whitsett (D-Detroit), says she’s not on board, in part because of worries about patient safety.
“I need to understand why they [Democratic leaders] feel it is necessary to remove restrictions” on abortion clinics that perform 120 or more procedural abortions each year, Whitsett said in a text to Michigan Radio last week. (Procedural abortions are abortions done within a clinic, usually via a procedure like aspiration, as opposed to medication abortions, where a patient takes pills to induce abortion and then goes home.)
In 2012, then-Governor Rick Snyder, a
Republican, signed a law requiring these abortion clinics to meet the standards of a standalone surgery center. Abortion advocates and Democratic leaders say removing those regulations is crucial for expanding access to patients - especially those in rural areas that don’t have procedural abortion clinics. But opponents say it’s “extreme” and “dangerous” legislation that would put patients’ health at risk.
Here’s what the medical and scientific evidence actually says about abortions, patient safety, and clinic regulations.
Q: Which abortion clinic regulations would the Reproductive Health Act remove?
A: The RHA would repeal a law that says any site that performs 120 or more procedural abortions a year, must be licensed as a “freestanding surgical outpatient facility,” or FSOF. (At the federal level, they’re called “ambulatory surgery centers,” or ASCs.) This law doesn’t apply to sites that only do medication abortions.
The Michigan Department of Licensing and
Regulatory Affairs (LARA) says any freestanding surgical outpatient facility must follow a long list of rules, including:
- The types of training and certification in infection prevention and control they must receive;
- Creating a “medical audit” process for LARA to review “a representative sample” of patient cases during an initial inspection or when investigating complaints;
- Submitting building construction plans or changes to the department for approval;
- Rules for medical and hazardous waste disposal;
- Meeting specific facility requirements, such as: minimum ceiling heights, having handrails on both sides of exterior ramps, the levels of interior lighting in various rooms, “minimum clear width” for certain doors, and the actual size and layout of certain rooms
The Reproductive Health Act would also remove the current laws about reporting abortions and any complications directly to the state within seven days. Those laws say failure to submit those reports “is a misdemeanor punishable by imprisonment of not more than 1 year or a fine of not more than $1,000.00 or both.”
Q) Why do abortion advocates want the RHA to remove these regulations?
They say TRAP (Targeted Regulations of Abortion Providers) laws like these are not only medically unnecessary, but are intended to make it harder for abortion clinics to exist - and thus harder for patients to access abortion care.
“These type of regulations have made it impossible to expand access to abortion care in the northern, more rural areas of the state, because of the incredible burden that it places on a facility,” Dr. Halley Crissman, an adjunct clinical professor at the University of Michigan and an OB-GYN who does abortions as part of her practice, told lawmakers at a September hearing on the RHA.
Currently, residents in the Upper Peninsula and Northern Michigan may need to drive hundreds of miles to get a procedural abortion. Planned Parenthood’s of Michigan’s sites in Marquette, Traverse City, and Petoskey only offer medication abortion, in part because of the “onerous” TRAP laws, says PPMI spokesperson Ashlea Phenecie. And since the closing of Heritage Clinic for Women in Grand Rapids last month, that city has joined a growing list of places in Michigan where there are no clinics offering procedural abortions.
(While both methods of abortion are safe and highly effective, medication abortion isn’t available past the 11th week of pregnancy. And many patients want the option of a procedural abortion – it’s quicker, involves shorter periods of pain, and has a slightly lower risk of being incomplete.)
The closest clinic for Grand Rapids-area patients seeking procedural abortions is now the Planned Parenthood of Michigan in Kalamazoo, where appointment times are “now sometimes stretching up to three weeks,” a PPMI spokesperson said in a statement last week.
“These regulations have shuttered countless clinics across the country, and they make it such that health care providers who want to offer abortion care as part of their practice, [like] your local OB-GYN, who you see for the rest of your care, can't offer that care,” Crissman told Michigan Radio.
Obtaining surgery center licensing also makes it more expensive for abortion clinics to provide care, experts say, and that cost can get passed on to patients.
If these surgical licensing requirements were really about patient safety, Crissman said, then the same restrictions would also be put on miscarriage care, which involves the exact same procedure as an aspiration abortion.
“It's the exact same technique, the same need
for surgical instruments. It's the same training. It's the same safety profile. Yet there is not a specific line in Michigan public health code requiring the treatment of miscarriage to occur in a surgical center. And we aren’t hearing the hubbub of need for such a regulation. This is because, again, the truth is that these existing regulations are not about patient safety. They're meant to limit access to abortion care and drive abortion stigma.”
Q) Why do abortion opponents want to keep these regulations?
Michigan abortion opponents say this fight isn’t about abortion access - it’s about patient safety.
“We want people to understand that whether you choose abortion, which is now a constitutional right in Michigan, you have every right to choose an abortion,” said Genevieve Marnon, legislative director for Michigan Right to Life. “We hope that you make a choice for life, that's our goal at Right to Life of Michigan, of course. But we think that women's health and safety, that standard building codes and informed consent, are standard of care and should be remaining on the books.”
Recently, about a dozen anti-abortion groups formed the Michigan Coalition to Protect a Woman’s Right to Know criticizing the Reproductive Health Act, warning it “strips abortion clinic licensing regulations, including regulations that ensure clinic hallways are wide enough for EMS workers and a stretcher in the case of an emergency, eliminates the requirement for sanitary humane disposal of fetal remains, removes transparency for the abortion industry by eliminating abortion reporting, and more,” according to a Right to Life of Michigan statement last week.
“I want you to think about the women in your life who may seek an abortion, your daughter, your friend, your sister,” Marnon told members of the Michigan House of Representatives health policy committee at the September hearing. “And ask yourself: will repealing legislation that regulates abortions make it safer or less safe for her to have an abortion?”
Q) So what regulations would still apply to abortion clinics, if the RHA passes?
Abortion clinics would be regulated the way any other other “office-based” (meaning, not in a hospital or surgery center) medical facility is: primarily through the medical license of the professionals providing the care.
Currently, only physicians are allowed to provide abortions in Michigan. And the Michigan Board of Medicine is supposed to “promote and protect the public's health, safety, and welfare…by ascertaining minimal entry level competency of medical doctors, and requiring continuing medical education during licensure. The Board also has the obligation to take disciplinary action against licensees who have violated the Michigan Public Health Code.”
That includes investigating complaints about doctors, which anyone can file. If the Board finds a doctor has violated the Michigan Public Health Code, including standards of “good moral character,” the board can take a range of disciplinary actions, from fining the doctor to permanently revoking their license and barring them from practicing in the state.
But the system is fallible. In 2013, the state failed to investigate complaints about a Muskegon doctor performing unsafe abortions. That clinic was eventually shut down for unsanitary conditions.
In response, lawmakers have since changed the public health code to make it easier to permanently revoke any medical professional’s license, increase oversight into which complaints get investigated, and make the status and any disciplinary action against a medical professional’s license available online. Those disciplinary actions are also publicly posted, and you can look up the status of a doctor’s license.
In addition to licensing oversight, Michigan also has rules about medical waste disposal that health care facilities providing abortions would still have to follow.
And regulations at the federal level would also still apply, from HIPPA (patient privacy) to OSHA (workplace safety) to the CDC (which provides national guidelines about infection prevention and control, including the Clinical Laboratory Improvement Amendment) and the FDA (which approves which drugs and medical equipment doctors can use.)
Some abortion providers, including Planned Parenthood of Michigan, are also accredited members of the National Abortion Federation, which provides best-practices and safety guidelines. And depending on their specialty, individual doctors may also be members of the American College of Obstetricians and Gynecologists, which has its own guidelines for facilities and doctors that perform abortion care.
Q) Which regulations are actually necessary for patient safety, according to experts?
The overwhelming scientific evidence shows that abortion in the US is a safe, common form of medical care that roughly one out of four women will access abortion care during their lives.
Both the American College of Obstetricians and Gynecologists and the National Academies of Sciences, Engineering, and Medicine say abortions can be safely performed in office-based settings, and that surgical center licenses aren’t necessary.
In 2018, Professor Sarah Roberts and her team at the University of California, San Francisco published a major study in the Journal of the American Medical Association, looking at nearly 50,000 women with private health insurance who had abortions between 2011-2014. They found “no significant difference in abortion-related morbidities and adverse events” between ambulatory surgery centers and office-based settings.
Those findings also held true “for first trimester and for second trimester abortions,” said Roberts, a UCSF professor of obstetrics and gynecology in the reproductive sciences department. “And from an evidence perspective, there is absolutely no reason to single out facilities that provide abortions for any kind of regulations that are different from other forms of health care. Abortions are safe, and there is no evidence to indicate that there's any additional regulations that are needed beyond what is done for similar procedures.”
But Dr. Ingrid Skop, an ACOG fellow and researcher at the anti-abortion Charlotte Lozier institute, disagrees.
“This limited JAMA study does not document that ambulatory surgical center requirements are unnecessary,” Skop said in a statement via email. “It merely documents that office surgeries in a private insurance population adhere to quality standards. Bottom line is that there are some abortion providers that will not provide even minimally quality care without legal requirements to do so. The question should not be ambulatory surgical centers vs regular medical offices (when standards are followed), but providers that follow quality standards vs those who do not.”
But both ACOG and the NAESM say requiring these abortion providers to have these surgical center licenses can potentially be harmful.
“False concerns for patient safety are being used as a justification for promoting regulations that specifically target abortion,” states ACOG's Project on Facility Guidelines for the Safe Performance of Primary Care and Gynecology Procedures in Offices and Clinics. “Enacting superfluous facility requirements is politics, not public safety.”
