Michigan’s Flawed New Abortion Coercion Bill

This isn’t exclusively a family law issue, but it’s closely related to several, and it shines a light on a political factor that makes being a family lawyer extremely difficult at times.

Governor Snyder recently signed into law Michigan House Bill 4787, which makes it a crime to coerce a woman into having an abortion. This law was completely unnecessary — it is already a crime to coerce a woman into having an abortion, or into anything else for that matter. Furthermore, this law makes it actively dangerous, legally, to speak to a pregnant woman about abortion at all.

The problem, as is typical of American laws in general, stems from a disconnection between what legislators imagine when they draft these laws and what actually happens in real-world courtrooms.

Defining Intent

Sec. 213a. (1) A person having actual knowledge that a female individual is pregnant shall not do any of the following with the intent to coerce her to have an abortion against her will:

Any non-lawyer reading that passage will probably come away with this translation: “If you want to force a woman to have an abortion she doesn’t want, here’s a list of things you’re not allowed to do:”

If only the law were that simple. The truth is that there are a few ways to define “intent.” There’s:

• Intent meaning ‘purpose.’ Here, “intent to coerce” has the meaning you expect it to: your purpose is to coerce a woman into having an abortion.
• Intent meaning ‘knowledge of relevant cause and effect.’ Under this definition of intent, “intent to coerce” means merely that you know if you say X, the woman is going to feel pressure toward having an abortion. It does not require that you want her to feel that pressure — only that a reasonable person could understand why she would feel that pressure after hearing you say X.
• Intent meaning ‘knowledge of probable relevant cause and effect.’ This is exactly like the previous point, but only requires you to know that the woman might feel pressure toward having an abortion. (Yes, this is real. A 2008 SCOTUS case, Giles v. California, had Justice Marshall opining that the “oldest rule of evidence” was “that a man is presumed to intend the natural and probable consequences of his acts.”)

These are obviously extremely different levels of intent — the first allows almost no wiggle-room; the third would mean that anyone who was talking to a woman without taking her potential reaction into account could potentially qualify as ‘intending’ to coerce an abortion.

Defining Threaten

Sec. 213a. (1)(a) Commit, attempt to commit, or threaten to commit any of the following violations against her or any other person:

Sec. 213a. (4)(b) “Threaten” means to make 2 or more statements or to engage in a course of conduct that would cause a reasonable person to believe that the individual is likely to act in accordance with the statements or the course of conduct. Threaten does not include constitutionally protected speech or any generalized statement regarding a lawful pregnancy option.

If all it takes to ‘threaten’ something is to say two sentences about an act and have the person you’re talking to believe that you might actually follow through with that act, discussions about the future essentially become huge cesspools of threats.

In order to run afoul of the law, though, you do have to be threatening one of two very specific-seeming things: either stalking, or an “assaultive crime.” The problem being that “assaultive crime” literally means making or threatening to make bodily contact with someone without their consent.

This lands us in a situation where speaking 2 sentences that cause a pregnant woman to believe that you will probably, in the future, speak 2 more sentences that cause her to believe that you will probably make some form of bodily contact with her without her explicit consent…is a felony. Which means that literally any conversation with a doctor about abortion could become “coerced abortion” depending on nothing more than how nervous the woman in question is.

The net result is that some pregnant women’s doctors will simply not talk to them about abortion in the first place — and that is a crime. We’ll talk about why next week.