Michigan bill about abortion access for people with dissociative disorders

[frameacloud]

Content warnings: About access to abortions. Rated PG-13.

Disclaimer: For historical purposes, this article collects some recent events that have been in the news about bills and court cases. All of this is publicly available information. The writers of this article are not lawyers, and this is not legal advice. For legal advice, you must consult with your lawyer.

Summary: Michigan’s state constitution generally protects access to abortion, especially if it’s medically indicated by a physical or mental health condition. Michigan House Bill 4105 specifies some mental health conditions that would count. The list includes dissociative disorders, such as DID. This looks like it's for protecting pregnant people's access to abortion, rather than forcing them to have one, though it doesn't talk about that. Our article about this is about two pages long, including sources referenced.

[Edited to add on May 1, 2023: In the couple days since I wrote this article, my impression of this bill has changed completely. See this post's comments, where we've been exploring it. The bill was written by Republicans who call themselves pro-life. Although they wrote the bill to sound like it further protects access to abortion, it would instead place additional limits on access to abortion. In other social media platforms where we've discussed it, several readers have remarked that the bill sounds like eugenics against people who have any sort of mental health diagnosis.]
 

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In the US state of Michigan, on February 15, six representatives of the state introduced House Bill 4105. These six sponsors were Representatives Angela Rigas, Gina Johnsen, Nancy DeBoer, Mark Tisdel, Andrew Fink, and Gregory Alexander. All of them are Republicans. MI HB 4105 says it is “A bill to describe certain policies and procedures for determining whether an abortion is medically indicated to protect the life or physical or mental health of a pregnant individual under section 28 of article I of the state constitution of 1963.”

This refers to a section in Michigan’s constitution that is all about reproductive rights. Its constitution says, “Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to [...] abortion care [...] An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means. Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual [...] ‘Fetal viability’ means: the point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.” (Art. I §28(1-2, 6)). Michigan statutes will generally protect people’s freedom to make their own reproductive choices. The constitution and the bill both use the words “pregnant individuals” rather than “women.” This inclusive language causes less trouble for people who are transgender or intersex.

The bill names some conditions in which abortion would be medically indicated. About physical health, it leaves that to be determined by the attending health care professional, without giving specific examples of conditions (HB 4105 §1(a,b)). About mental health, the bill says, “An abortion is medically indicated to protect the mental health of the pregnant individual if the pregnant individual was diagnosed with a serious mental condition before the pregnant individual's pregnancy. As used in this subdivision, ‘serious mental condition’ means 1 or more of the following …” (§1(c)). Then the bill gives a list of some specific conditions or families of conditions, one of which is “A dissociative disorder” (§1(c)(ix)).

Dissociative disorders are a family of conditions. One type of dissociative disorder is Dissociative Identity Disorder, formerly called Multiple Personality Disorder. DID is recognized in the DSM-5 and ICD-11. DID is one form of plurality. Plurality is an umbrella term for any experience of more than one person in one body all the time, regardless of what sorts of challenges they have with that, or how their plurality began. Not all plural systems have the eligibility or the desire to be diagnosed with DID. Plural systems are one of many sorts of people who can opt in to being included under the alterhuman umbrella, together with otherkin, therianthropes, furries, and more. The Plural Association nonprofit found that 81.5% of plural systems have nonhuman headmates. Many plural systems have something in common with otherkin, who identify as nonhuman beings.

This bill would protect access to abortions for people who had already been diagnosed with DID before they got pregnant, if they need an abortion to protect their mental health. The constitution and the bill don't look like they would force anyone to get an abortion who doesn’t want one. The language in the bill doesn’t mention anything about the pregnant person’s own choice if a health provider decides that an abortion is medically indicated by their mental health condition.

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References

The Constitution of the State of Michigan of 1963. Michigan Legislature. https://www.legislature.mi.gov/Publications/MIConstitution.pdf Archived October 16, 2021. https://web.archive.org/web/20221016094043/http://www.legislature.mi.gov/Publications/MIConstitution.pdf

MI HB 4105. Michigan Legislature. http://legislature.mi.gov/doc.aspx?2023-HB-4105 Archived April 29, 2023. https://web.archive.org/web/20230430002914/http://www.legislature.mi.gov/(S(l4pvsh55etgy0g40a3vljko4))/mileg.aspx?page=GetObject&objectname=2023-HB-4105

MI HB 4105. LegiScan. https://legiscan.com/MI/bill/HB4105/2023 Archived February 15, 2023. https://web.archive.org/web/20230215233535/https://legiscan.com/MI/bill/HB4105/2023

The Plural Association (January 19, 2023). “We held a poll in which 200 people with DID participated…” Twitter. https://twitter.com/TpaNonprofit/status/1616311566118572033 Archived April 29, 2023. https://web.archive.org/web/20230430002806/https://twitter.com/TpaNonprofit/status/1616311566118572033


 

Comments

[frameacloud]

(Content warning: about reproductive rights.)

So it seems, but I'm not sure. A bill that protects reproductive rights is uncharacteristic coming from a group of six Republicans. That makes me wonder if there might be something important that I missed about this bill. I didn't find any news articles that gave more context. I hope the bill's not really for forcing people to terminate their pregnancies against their own wishes if they have any of the mental health conditions in the list, which covers most sorts of neurodivergence. That would be eugenics. It would be more characteristic of how the Republican party has a history of disregarding the survival of neurodivergent people. That's the worst interpretation I can see in the bill. I keep rereading the bill and state constitution to try to figure out whether that's a possible interpretation, or if something rules it out, and I can't say for sure.

Looking at the political stances of a bill's sponsors gives more context. The primary sponsor of the bill, Rep. Angela Rigas, says the main areas of public policy she's interested in include "parental choice" and "medical freedom". She otherwise has typical conservative views (Ballotpedia). On her campaign site, she explains that "medical freedom" means "[s]he will protect our right to choose our healthcare provider and plan"; she calls herself "Pro-Life," and also supports the idea that a marriage is only "between one man and one woman" (Rigas). It is uncharacteristic to see someone with those stances sponsor a bill in gender-inclusive language that increases and outlines protections for abortion access. I'd like to see something about her views about people who have mental health conditions, but I haven't found any yet. One of the most important aspects of her political background is that she's proud that she went to the Capitol riot on January 6 as one of Trump's supporters (Bridge Michigan). Because of her presence there, Trump endorsed her (Trump's site). This means she's very right wing, which makes me wonder all the more about what's going on with this bill.

[kistaro]

Unfortunately, this law is a sneaky attack on abortion rights already enumerated directly in the Michigan State Constitution. I posted a top-level reply because it's a reply to the topic itself: https://otherkinnews.dreamwidth.org/89717.html?thread=239477#cmt239477

The law is really carefully written to look like it's protecting these rights -- the impression it left on you is exactly the one it is designed to leave.

[who_is_page]

Alas! The wool was pulled over my eyes on my first read-through. I should have looked at this more carefully, thank you so much for your comment and detailed breakdown.

Detailed analysis: stripping away rights under the guise of protecting them

[kistaro]

Selectively quoting from the Michigan State Constitution for brevity, hopefully accurate (see http://www.legislature.mi.gov/(S(qsuhu43w3a5hmt2qusvluo1y))/mileg.aspx?page=getObject&objectName=mcl-Article-I-28 to decide if my quoting is fair):

"Every individual has a fundamental right to reproductive freedom, which entails [...] all matters relating to pregnancy, including but not limited to [...] abortion care, [...]. Notwithstanding the above, the state may regulate [...] abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual."

So, Michigan has an absolute right to pre-viability abortions, which is up to about 23 weeks, and further rights to any medically necessary abortion. This law should therefore be interpreted as an attempt to write a law to narrow the scope of a State Constitutional right, which is an interesting little trick when the right itself is a "make no law" sort, so it's written to be -without close scrutiny, at least -- plausibly in the bounds that the State Constitution permits. Laws that push constitutional limits or just break them and dare the courts to enforce it get the media attention, but slow, steady goalpost-shifting is a much more effective legislative strategy long-term.

This proposed law does not protect anyone's rights. Instead, it takes a protected right and attempts to -- unconstitutionally, in my opinion -- restrict it:

1. An additional doctor is specifically required. The Michigan State Constitution says "an attending health care professional"; this law specifies not only which professional, but that it must be someone additional.

2. Two doctors are required to explicitly agree that the abortion is helpful; the law carves out a window for an activist doctor to proclaim that even though a clearly documented relevant prior diagnosis exists, the abortion wouldn't *help* so it is not protected by the Constitution. This opens the window to medical rulemaking (like Florida's trans care bans) requiring doctors to come to this conclusion in various circumstances, threatening their licenses if they do not do so.

3. Mental health protections now only apply to specific and prior diagnoses. This explicitly excludes diagnoses that happen during or as a result of pregnancy or conception. Emotional trauma caused directly by sexual assault logically cannot be diagnosed before a person has been made pregnant as a consequence of that assault.

4. It's easy to see a list. It requires more creativity to imagine what is not on that list. Gender identity disorder is notably absent.

5. The existence of a list invites future amendment to shrink the list, after a court precedent is established that treats the law, and the list, as acceptable under the Michigan State constitution. The list should be regarded as a distraction -- arguing about whether the list of prior diagnoses is adequate implicitly concedes that the entire law and its structure is Constitutionally valid.

6. A policy that favors abortions for people with mental illness makes me suspicious of eugenicist sentiment among its proponents.

To be clear, the law is not valid under any reasonable interpretation of the Michigan State Constitution, because "[...] in no circumstance shall the state prohibit an abortion that, in the professional judgment of *an* attending health care professional, is medically indicated [...]". This is a "make-no-law" kind of regulation that, unambiguously, means "one attending health professional, in their medical judgment, believes the abortion is medically indicated", which is very different from "multiple doctors, one of whom had no prior requirement to be involved in the abortion procedure at all, must unanimously agree, and legislators -- not doctors -- have defined the circumstances in which a health professional may agree on grounds of mental health". The presence of this list of protected diagnoses is a distraction from the other provisions of the law, and it is clearly intentionally broadly written to try to get past. Regulators will be looking for an opportunity to prove before a court that the law is permissible under the Constitution; after they successfully persuade the Michigan Supreme Court that "in no circumstance shall the state prohibit" actually means "the state can define narrower circumstances but they're close enough", they can tighten up the circumstances further and if those subsequent revisions to the law lose in court, they only lose on that narrow issue rather than the large one.

So, look at it as a foot-in-the-door approach to regulating something that the State constitution explicitly and thoroughly forbids the regulation of. I also note that the Constitutional protection includes "unless justified by a compelling state interest achieved by the least restrictive means", and this law is an effort to argue that "minimizing abortions" is a compelling state interest despite the direct conflict with an enumerated right. The "notwithstanding the above" in the Constitution does a lot to help, since it's a very good reason that decision permitting a state-unconstitutional law regulating post-viability abortions should not regarded as precedential regarding any law targeting pre-viability abortions, but make no mistake, it is still a step in that direction.

Going straight for a well-defended goal is unwise. They're working to carve out secure ground to work from so they can make bolder attacks in the future without risking a precedent suggesting that "in no circumstance shall the state prohibit" means what it says. Once they have a precedent that is clear that it does *not* mean "no circumstance", they can take larger risks with less to lose.

Tightening the ratchet.

Re: Detailed analysis: stripping away rights under the guise of protecting them

[frameacloud]

Thank you for posting your analysis here, Kistaro. Your points changed how I see this bill, and they make sense with what we know about the bill's sponsors. I had hesitated to interpret this as a harmful bill, because I saw several concerning things about it, but I didn't want to be alarmist if I wasn't sure. You've done well at showing exactly how the bill's long-range intention is for limiting access to abortion, not protecting it.

[lb_lee]

Ugh. Man, but I hate it when zealots try to use me as a beating stick to make life worse for others. Thanks for the write-up and the edit linking to the comments!