JOHN,
As a former elected county prosecuting attorney, I respectfully urge the prosecuting attorneys of this state to not enforce Michigan’s 1931 statute criminalizing abortion.
A preeminent power invested in the office of prosecuting attorney is the discretion to determine whether and to what extent the laws of this state should be enforced. The prosecutor is expected to act as the “conscience of the community.” In the case of the 1931 felony stature criminalizing abortions, with no exceptions other than to save the life of the mother, there is wisdom and compassion in not enforcing that law.
The people of the State of Michigan will decide on November 8, 2022, whether the protections of Roe v Wade will be adopted as part of the Michigan Constitution. If that measure passes, the prosecution of physicians and women in the next three months will serve no purpose other than public humiliation. The convictions, if any were to be obtained, would have to be reversed. Common sense dictates that there be a moratorium on prosecutions until the people have spoken.
Beyond that consideration, the 1931 law is fundamentally flawed. The law makes no exception for victims of rape or incest. Surely nobody would require a 12-year-old child victim of rape or incest to carry a pregnancy to term. If permitting an abortion for a victim of that age would be the right thing to do, why would it not also be the right thing to do for a 13-year-old, or a 14-year-old, or an 18-year-old, or a victim of any age?
Even the exception for the life of the mother is problematic. What does that exception mean? If a woman is told that she has a thirty percent chance of dying if she continues her pregnancy, does that make her eligible for a life-saving abortion? What percentage risk of death is sufficient to qualify? It goes without saying that prosecutors are woefully ill equipped to make the call. Yet under the 1931 law, the determination as to whether a life is sufficiently in peril will have to be made by the mother, her physician, and her county prosecutor. This invasion into a private medical consultation is totally unacceptable. The discrimination based on sex is also palpable. Imagine if a man were told that he had a medical condition that might result in his death but was then told that he could not receive treatment because the likelihood of death was not high enough.
The law intrudes on the privacy rights of every expectant mother. To cite one horrifying example, if a woman suffers the heartbreak of a miscarriage, she will inevitably become the target of a of criminal investigation. Her medical records will be reviewed, as the investigation tries to sort out whether the miscarriage occurred naturally or whether it was induced. No person should have to face the threat of criminal prosecution after having suffered such a loss.
The danger of unequal enforcement and the absence of clear standards are at the core of what it means to deny equal protection and due process of law under the Michigan Constitution. Prosecutors are constitutionally and legally free to apply their understanding of what these terms mean – even without waiting for a court decision. Indeed, they are required to do so.
I applaud those prosecutors who have already announced their intentions to not prosecute. I urge all others to adopt the same view. Let women have the freedom to make their own decisions on their health care, and let doctors be allowed to practice medicine without threat of criminal penalties
Carl J. Marlinga
PAID FOR BY MARLINGA FOR CONGRESS
Marlinga for Congress
155 S. Main #46232
Mt. Clemens, MI 48046