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Democrats in Michigan face challenges repealing obstacles to access abortion

Since the Supreme Court overturned Roe v. Wade, patients seeking abortions have been coming to Michigan in record numbersfrom around the country. Voters passed Proposition 3 last November, enshrining abortion rights in the state's constitution.

But it can still be difficult to access abortion care in Michigan, and even patients who have secured appointments are regularly turned away, according to doctors. That's because of restrictions that are still on the books in Michigan, including an online consent form that has to be printed and signed 24 hours before the appointment begins.

"Patients tell me, 'Doctor, why are you stopping me from getting the care that I need?'" says Dr. Halley Crissman, an OB-GYN who provides abortions as part of her practice, and is also an assistant professor at the University of Michigan. "The answer is that Prop 3 made access to abortion care a right in Michigan. But these laws remain on the books."

This fall, Democrats in Michigan pledged to address several of the remaining regulations. They introduced the Reproductive Health Act. The wide-ranging legislation would repeal the 24-hour mandatory waiting period, get rid of the informed consent form, allow Medicaid to cover abortions for low-income patients, and make it easier for private insurance to cover abortions. It would also lift regulations on abortion clinics that advocates say are unnecessary and burdensome.

The time is ripe, Democrats say. Since the 2022 election, the party controls both houses of the legislature and the governorship, positioning them to pass what they said would be another landmark victory for reproductive health.

But now that legislation is stalled — not because of predicted opposition from the Republican minority, but because of dissension within the Democrats' own ranks. Michigan is one of the few remaining Midwest states where abortion remains legal, so Democrats' efforts to make the procedure more accessible in the state will have wide-ranging consequences.

Pre-visit paperwork requires internet access, a printer, and exact timing

Dr. Crissman, the OB-GYN in Ann Arbor, has a request for anyone who thinks Michigan's 24-hour mandatory waiting period and informed consent form laws are reasonable: see if you can figure them out.

"Try to figure out what you're supposed to print. See if you get it right," says Crissman. She also testified last month in support of the Reproductive Health Act at a committee hearing in the state capitol in Lansing. She spoke as the advocacy chair of the Michigan Section of the American College of Obstetricians and Gynecologists. "Because everyday I see patients who've driven five hours for abortion care. And they haven't gotten it right."

When patients book their appointments, staffers tell them about the state's mandatory forms. They direct them to a state website, which links to another site, which then has links for both patients and providers. The patient link then connects to a third sitewith information that patients are legally required to review: illustrations of fetal development, a section on abortion coercion, medical summaries of abortion procedures, and a 19-page pamphlet on prenatal care and parenting, called the Pregnancy and Infant Health Education Packet.

This pamphlet relies heavily on a Q&A format that appears focused on helping women navigate potential difficulties during a pregnancy. One question reads: "How am I supposed to eat healthy food when it costs so much?" The answer: try food stamps. Q: "What if my house or apartment is in an unsafe neighborhood?" A: Have a "safety plan in mind" and "lock your doors."

The pamphlet is also full of pictures of smiling pregnant women cradling their bellies, and beaming parents holding sleeping newborns. At a statehouse hearing last month, Dr. Sarah Wallett, the chief medical operating officer of Planned Parenthood of Michigan, testified about a patient who found the pamphlet disturbing. The patient was ending a much-wanted pregnancy because of a fetal "anomaly incompatible with life," Wallet said. "She asked me with tears in her eyes why I had forced her to look at information that wasn't relevant to her, that only made this harder for her and her family going through this heartbreak. I could only reply, 'Because Michigan law requires me to.'"

Once patients have reviewed the required materials, they need to click "finish." That automatically generates a signature form, with a date and time stamp of the exact moment they clicked "finish." That time stamp must be at least 24 hours before their appointment, but no more than two weeks before the appointment. Otherwise, under Michigan law the appointment must be canceled.

Patients must then print and bring a copy of that signed, time-stamped page to the appointment.

Cancellations over paperwork can lead to increased risks

Planned Parenthood of Michigan says they turn away at least 150 patients per month because of mistakes with that form: either the patient didn't sign it in the right time window, or printed the wrong page, or didn't have a printer.

That delay in care can be medically risky, according to Dr. Charita Roque, who also testified at the bill hearing. Roque explained that a patient had developed peripartum cardiomyopathy, a potentially life-threatening heart problem that can occur during pregnancy.

"Not wanting to risk her life, or leave the young child she already had without a mother, she decided to get an abortion," said Dr. Roque, an OB-GYN and assistant professor at Western Michigan University's medical school. "But by the time she finally got to me, she was 13 weeks pregnant, and the clock was ticking due to her high-risk health status."

But the patient didn't have a printer, so when she arrived at her appointment, she hadn't brought a hard copy of the required form. Her appointment had to be postponed.

"During that time, her cardiac status became even higher risk, and it was evident that she would need a higher level of care in a hospital setting," Roque said. "This meant that the cost would be much, much higher: over $10,000. And since her insurance was legally prohibited from covering abortion care, she anticipated she would have to incur significant medical debt. In the end, she suffered a five-week delay from the first day I saw her [to] when her procedure was finally completed. The delay was entirely unnecessary."

A coalition of hundreds of Michigan doctors, nurses and other healthcare providers are publicly urging legislators topass the RHA.

A Democrat breaks with her party

Republicans and abortion opponents have called the Reproductive Health Act a political overreach, pointing out that the bill goes far beyond Proposition 3's promise last fall, which was to "#RestoreRoe."

"The so-called Reproductive Health Act, with its dangerous and unpopular changes, goes far beyond what Michigan voters approved in Proposal 3 of 2022," Republican State Representative Ken Borton said in a statement. "While claiming to promote reproductive health, this plan ultimately risks hurting Michigan residents by undermining patients and decriminalizing the worst parts of abortion practices. These bills strip away critical information and safety standards, and they delegitimize the ballot initiative process by discarding the will of Michigan voters, tricking them by delivering a plan they never wanted."

Still, until a few weeks ago, Democrats appeared poised to pass the Reproductive Health Act thanks to their majorities in both the state House and Senate. Governor Gretchen Whitmer has already vowed to sign it.

Then, on September 20, State Representative Karen Whitsett stunned her own party: she cast the lone Democratic "no" vote in the House of Representatives health policy committee.The bills still passed out of committee, but Democrats' majority in the state house is so slim that they can't afford to lose a single vote.

But Whitsett says she's not alone in her concerns, and that other Democrats in the state legislature have privately voiced similar doubts about the RHA.

Whitsett says that at first, she thought her discussions with Democratic leadership were productive, "that we were actually getting somewhere."

"But it was pushed through. And I was asked to either not come to work, or to pass on my vote. I'm not doing either of those."

It's not that Whitsett doesn't support abortion rights, she says. "I've been raped. I've gone through the process of trying to make the hard decision. I did the 24-hour pause. I did all these things that everyone else is currently going through."

And because she's had an abortion, she says that she is proof the current restrictions aren't so unreasonable. If the current online forms are confusing, she said, "let's bring this into 2023: How about you DocuSign? But I still do not think that 24 hours of a pause, to make sure you're making the right decision, is too much to ask."

Most of all, Whitsett says, her constituents in Detroit and neighboring Dearborn do not want Medicaid - and therefore, their state tax dollars - funding elective abortions. Medicaid is jointly funded by state and federal dollars, and the longstanding federal Hyde amendment prohibits federal funds from paying for abortion except in the case of rape, incest or to save the life of the patient. But states have the option to use their own funding to cover abortion care for Medicaid recipients.

In Michigan, voters approved a ban in 1988 on state funding for abortion, but the RHA would overturn that. The change would increase state Medicaid costs by an estimated $2-6 million, according to aMichigan House Fiscal Agency analysis.

"People are saying, 'I agree to reproductive health. But I never agreed to pay for it,'" Whitsett says. "And I think that's very fair...I just do not think that that's something that should be asked of anyone as a taxpayer."

As legislative clock ticks, political pressures ramp up

Whitsett is now the target of a public pressure campaign by advocates such as the ACLU of Michigan and Planned Parenthood of Michigan. This included a virtual event targeted at Detroit voters in Whitsett's district and public statements that claim Whitsett would be "solely responsible for the continued enforcement of dozens of anti-abortion restrictions that disproportionately harm women of color and people who are struggling to make ends meet."

Dr. Crissman says opponents of the bill, from either party, might learn a lot from the conversations she has with her patients.

"I wish Representative Whitsett could sit with me, and tell a patient to their face: 'No, we can't provide your abortion care today, because you printed the wrong page on this 24-hour consent,'" Crissman says. "Or 'No, mother of five trying to make ends meet and feed your kids, you can't use your Medicaid to pay for abortion care.' Because I don't want to tell patients that anymore."

But abortion opponents say they're not surprised the legislation has stalled.

"These hastily crafted bills present a real danger to women and our broader communities," said Genevieve Marnon, legislative director of Right to Life of Michigan, in an email. "I have no doubt many people of good conscience are finding cause for hesitation, for a whole host of reasons."

At least three people with knowledge of the ongoing legislative negotiations, who asked not to be identified because they weren't authorized to speak publicly about the bill, told NPR there's still hope for a compromise on the bill, before the legislative session ends later this year.

Copyright 2023 Michigan Radio

Kate Wells is a Peabody Award-winning journalist and co-host of the Michigan Radio and NPR podcast Believed. The series was widely ranked among the best of the year, drawing millions of downloads and numerous awards. She and co-host Lindsey Smith received the prestigious Livingston Award for Young Journalists. Judges described their work as "a haunting and multifaceted account of U.S.A. Gymnastics doctor Larry Nassar’s belated arrest and an intimate look at how an army of women – a detective, a prosecutor and survivors – brought down the serial sex offender."