Mich. ruling expands abortion rights

July 16, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- In a significant victory for abortion rights advocates, a state judge in Michigan ruled yesterday that women there have a broader right under the state's constitution to end their pregnancies than they do under the U.S. Constitution.

The Detroit judge, in a decision subject to appeal to higher state courts, struck down two requirements similar to ones that the U.S. Supreme Court has upheld under federal law:

* A 24-hour waiting period before an abortion may be performed.

* A requirement that a woman may consent to the abortion only after receiving a state-specified lecture describing the fetus and advising her that she may change her mind.

The ruling by state Circuit Judge John A. Murphy said that those provisions would impose burdens on the newly recognized state right to an abortion, especially for women in northern Michigan, who the judge said would have to make two trips to a clinic if they had to wait a day.

Some other states now recognize an abortion right under their state constitutions. Such rights are protected no matter what happens to the right under federal law. In some of those states, however, the right under state law does not appear to be as broad as it was found to be in Michigan under yesterday's ruling.

In a few states, now including Michigan, the right has been recognized as part of a right of privacy.

In Maryland, a law passed by the General Assembly in 1992 protects abortion rights with few restrictions. That law survived a challenge in a 1992 voter referendum.

Detroit Judge Murphy said that the right to abortion is a "fundamental" right in Michigan and thus is assured of the strongest legal protection.

The two restrictions that were nullified yesterday are also facing a challenge now in federal court under the U.S. Constitution, but that case is likely to be postponed during appeals in state court of Judge Murphy's decision.

The clauses that Judge Murphy nullified are much like requirements the U.S. Supreme Court upheld in its most recent ruling spelling out federal abortion rights. In that decision in a Pennsylvania case in 1992, the Supreme Court reaffirmed the right to abortion but actually lowered the federal Constitution's protection for that right.

Now, the Constitution can be used to overturn state restrictions on abortion only if they impose an "undue burden" on the right to abortion.

In Michigan, Judge Murphy ruled, all such restrictions must fall if the state cannot prove they are necessary -- a tougher standard, and the one that governed the federal right between original abortion ruling in 1973 in Roe vs. Wade and the 1992 decision in the Pennsylvania case.

States are free, in most areas, to grant greater protection to rights than are available under the U.S. Constitution.

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