SALE OF ABORTION DRUGS; REPEAL S.B. 37, 39, & 93:
ANALYSIS AS PASSED BY THE SENATE
Senate Bills 37, 39, and 93 (as passed by the Senate)
Sponsor: Senator Rosemary Bayer (S.B. 37)
Senator Erika Geiss (S.B. 39)
Senator Sarah Anthony (S.B. 93)
Committee: Health Policy
Date Completed: 11-29-23
RATIONALE
During the 2022 election cycle, a group called Reproductive Freedom for All circulated
petitions and collected enough signatures for a proposed constitutional amendment to be
placed on the 2022 November general election ballot. The passage of Proposal 22-3, which
enshrined the individual right to reproductive freedom and abortion procedures in the
Michigan Constitution, invalidated State laws that conflicted with the Proposal's amendments.
It was suggested that Sections 14, 15, and 40 of the Michigan Penal Code (see CONTENT)
be repealed to agree with the Proposal's provisions.
CONTENT
Senate Bill 39 would repeal Section 14 of the Michigan Penal Code, which prescribes
a felony for willfully administering to a pregnant woman any medicine, drug, or
substance, or employing any instrument or other means, with intent to procure a
miscarriage, unless it is necessary to protect the life of the mother. Section 14
further specifies that if those actions cause the death of the pregnant woman, the
offense is manslaughter.
Senate Bill 37 would delete from sentencing guidelines in the Code of Criminal
Procedure the felonies prescribed under Section 14 of the Penal Code.
Senate Bill 93 would repeal Section 15 of the Michigan Penal Code, which prescribes
a misdemeanor for advertising, publishing, or selling any pills, powder, drugs, or
combination of drugs, designed expressly for the use of females for the purpose of
procuring an abortion unless the drug or medicine is sold upon the written
prescription of a practicing physician, and the dealer or druggist registered certain
information pertaining to the purchaser, medicine, and physician in his or her
records.
Senate Bill 37 is described in more detail below.
Senate Bill 37
Currently, under the Code of Criminal Procedure, administering an abortion is a Class G felony
against a person with a statutory maximum sentence of four years' imprisonment.
Administering an abortion resulting in the death of the female is a Class C felony against a
person with a statutory maximum sentence of 15 years' imprisonment.
The bill would delete these sentencing guidelines.
MCL 777.16a (S.B. 37)
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MCL 750.14 (repealed) (S.B. 39)
MCL 750.15 (repealed) (S.B. 93)
BACKGROUND
In 1973, the United States Supreme Court issued its decision in Roe v. Wade, in which the
Court struck down a Texas law making abortion illegal except when necessary to save the
mother's life.1 Following this decision, the abortion ban under Section 14 of the Michigan Penal
Code went dormant. In June 2022, the US Supreme Court issued its opinion in Dobbs v.
Jackson Women's Health Organization, which overruled Roe on the grounds that the US
Constitution makes no reference to abortion, and the right is not implicitly protected by any
constitutional provision, including the Fourteenth Amendment. 2 Following the Dobbs decision,
Michigan's abortion ban went back into effect; however, a lawsuit was filed seeking to block
the enforcement of the law and that lawsuit resulted in a court of claims judge ruling that the
abortion ban was unconstitutional.
During the 2022 election cycle, a group called Reproductive Freedom for All circulated
petitions and collected enough signatures for a proposed constitutional amendment to be
placed on the 2022 November general election ballot. The amendment establishes an
individual right to reproductive freedom, including the right to make and carry out all decisions
about pregnancy, such as prenatal care, childbirth, postpartum care, contraception,
sterilization, abortion, miscarriage management, and infertility; allows the State to prohibit
abortion after fetal viability unless needed to protect a patient's life or physical or mental
health; prohibits State discrimination in enforcement of the right; prohibits the prosecution
of an individual, or a person helping a pregnant individual, for exercising rights established
by the amendment; and invalidates State laws that conflict with the proposed amendment. 3
Proposal 22-3 passed with 56.66% of electors in favor of the proposal. 4
ARGUMENTS
(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The
Senate Fiscal Agency neither supports nor opposes legislation.)
Supporting Argument
Repealing Sections 14, 15, and 40 will safeguard abortion procedures from any future efforts
to limit them. If a court, constitutional convention, or referendum overturns or limits Proposal
22-3, some believe it should be up to the voters at that time to determine the laws governing
abortion access and reproductive rights. Future residents of Michigan should not be forced to
adhere to a law from 1931 that may not reflect their contemporary values and so Sections
14, 15, and 40 should be deleted.
Supporting Argument
According to testimony before the Senate Committee on Health Policy, some of the provisions
proposed to be repealed disproportionately harm the safety and health of young people. Over
a third of patients who undergo an abortion procedure are 18 to 24 years old. Additionally,
some people expressed concerns that young people are excluded from decision-making that
affects their bodies with regards to abortion procedures. Sections 14, 15, and 40 should be
repealed to end the disparate effect that a lack of reproductive freedom has on young people.
1 410 US 113 (1973)
2 597 US ___.
3 "November 2022 Ballot Proposal 22-3", Senate Fiscal Agency.
4
"2022 Michigan Election Results", The Office of Secretary of State Jocelyn Benson. Available at:
https://mielections.us/election/results/2022GEN_CENR.html. Retrieved on 2-28-2023.
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Supporting Argument
Sections 14, 15, and 40 make it difficult for doctors to make good medical decisions. According
to testimony before the Senate Committee on Health Policy, doctors providing abortion
services sometimes only have a few minutes to make decisions regarding the medical
treatment of a patient. In one study published by the National Institute of Health, 93% of
Wisconsin doctors surveyed were worried that further restrictions on abortion access would
affect the ability of physicians to offer timely and appropriate care.5 Additionally, the World
Health Organization claims that criminalizing abortion often leads to an unnecessary
progression of life-threatening circumstances for pregnant individuals because doctors may
have to wait to make certain the procedure is medically necessary and therefore legal.6
Sections 14, 15, and 40 of the Michigan Penal Code should be repealed in the interest of
facilitating good medical decisions related to abortion.
Response: These sections are the only sections of law that allow doctors to be
criminally prosecuted if they administer an abortion poorly.
Supporting Argument
State law should not allow one religion's belief system to be elevated above others. According
to testimony before the Senate Committee on Health Policy, abortion values in America are
based largely on a Christian concept of when life begins. Given there is no scientific or religious
consensus on when life begins, this concept reflected in law constitutes faith-based
discrimination and so Sections 14, 15, and 40 should be repealed.
Response: According to testimony before the Senate Committee on Health Policy,
some suggest that it is clear scientifically and medically that life begins at conception. 7 In
addition, an overwhelming number of biologists believe that conception, or fertilization, is a
measurable beginning to human life.8
Supporting Argument
Abortion is a way in which people may remove themselves from otherwise abusive life
circumstances. For example, the leading cause of death among pregnant individuals is
homicide, oftentimes stemming from instances of domestic violence. 9 One in six pregnant
women are abused by a domestic partner. 10 Guaranteeing access to abortion by removing
prohibitions that disagree with Proposal 22-3's provisions could help an abused, pregnant
individual leave an abusive relationship.
Opposing Argument
Repealing Sections 14, 15, and 40 could place women and their health at risk. Abortion is not
always safe and can result in physical and mental side effects, including death. If Sections
14, 15, and 40 were not invalidated, they could help to limit access to abortion services in
the future. Limiting access to abortion services would aid in preventing harmful side effects
to pregnant individuals and so these Sections should not be repealed.
Opposing Argument
Abortion is usually unnecessary because individuals who want an abortion would not undergo
one if they had a support system. According to testimony before the Senate Committee on
Health Policy, a survey of post-abortive women found that 86% of these women would not
have had their abortion if only one person had been willing to help them. The State should
5
Higgins et al., "The Importance of Physician Concern and Expertise in Increasing Abortion Health
Care Access in Local Contexts", January 2021.
6
World Health Organization, Abortion care guideline, pg. 24, 2023.
7
Scott Klusendorf, The Case for Life, Pages 36 & 44, 2009.
8
Id.
9
Sanctuary for Families, Access to Abortion – A Lifeline for Survivors of Domestic Violence, June 24,
2022.
10
Id.
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instead focus on ways to support women and families throughout their pregnancies. Repealing
Sections 14, 15, and 40 is unnecessary because these laws make abortion services easier to
obtain.
Opposing Argument
Some believe Sections 14, 15, and 40 could remain valid within the framework of Proposal
22-3 and continue to serve a limited purpose because Proposal 22-3 charges the Legislature
with prescribing some details of how abortion procedures should operate. According to
testimony before the Senate Committee on Health Policy, Sections 14, 15, & 40 still would
apply to abortions performed on full-term fetuses with healthy mothers, so these Sections
should not be invalidated.
Opposing Argument
According to testimony before the Senate Committee on Health Policy, repealing Sections 14,
15, and 40 also would eliminate the requirement that doctors must give out prescriptions for
the distribution of drugs that induce abortion. Repealing these sections could cause an
increase in the illegal production, sale, and distribution of homemade drugs intended to
produce abortion. Since the repeal of these sections could result in poorer healthcare for
women, they should not be repealed.
Legislative Analyst: Alex Krabill
FISCAL IMPACT
The bills would have no fiscal impact on State or local government.
Fiscal Analyst: Joe Carrasco, Jr.
SAS\S2324\s37a
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official
statement of legislative intent.
Page 4 of 4 Bill Analysis @ www.senate.michigan.gov/sfa sb37/39/93/2324


Statutes affected:
Senate Introduced Bill: 777.16
As Passed by the Senate: 777.16