LANSING, Mich. –– The case of a Michigan doctor accused of performing a late-term abortion on a healthy woman has gained national attention in recent weeks as the possibility of his imprisonment becomes real.
If convicted, Jose Higuera would be the first U.S. doctor jailed for performing an abortion since the U.S. Supreme Court declared it a constitutional right in 1973.
Though the specific details of the case are closely kept, public records indicate that a nurse who worked in Higuera's office informed local officials five years ago that the 61-year-old gynecologist routinely performed late-term abortions on women without recording any medical reason for doing so.
The 1973 Supreme Court case Doe v. Bolton declared that a doctor could perform late-term abortions only if, in “his best clinical judgment,” he found it “necessary” for a woman's “physical or mental health.”
But because the court left it up to abortionists to decide whether the women who came to them for abortions had health reasons for doing so, Justice Anthony Kennedy, writing in dissent of the majority opinion for last year's Supreme Court Stenberg vs. Carhart decision that struck down Nebraska's law banning partial-birth abortion, referred to the court's notion of a health exception as “meaningless.”
The Higuera case marks the first time an abortionist has been found prosecutable for abortion under the provisions stipulated by Roe and the abortion decisions that have followed from it.
Planned Parenthood of Michigan spokeswoman Judy Karandjeff said she had no comment on the Higuera case and the Michigan chapter of the National Abortion and Reproductive Rights Action League did not return the Register's call for comment.
Mark Blumer, the Michigan state prosecutor who is arguing the case against Higuera, told the Register that he could not speculate on the potential effect of a successful prosecution.
“I can only say that we felt that the facts of this case came within the limits of the Michigan statute” prohibiting abortion, he said. Blumer also declined to say when the court might go to trial, noting that it has already taken four years to win an appeal of an earlier decision in Higuera's favor.
The Michigan statute cited by Blumer predates the Roe v. Wade decision of 1973. Reaffirmed just months after the Roe ruling, it states that an abortion is illegal in the state of Michigan if it does not comply with the dictates of Roe.
The Michigan Court of Appeals reaffirmed the statue in January, but Higuera's attorney is now fighting it in Michigan's Supreme Court. Arguments before the court are not yet scheduled.
By giving an abortionist freedom to perform abortions for virtually any reason at any time, said Ave Maria Law School Dean Bernard Dobranski, Stenberg v. Carhart “left a hole wide enough to drag a whole army division of trucks through.”
But precisely because of the court's consistent defense and expansion of abortion rights, Dobranski said abortionists like Higuera are often cavalier to the point of ignoring even the minor technicalities the court requires for ensuring an abortion's legality.
“The court's treatment of abortion has really engendered in those who do abortions this [notion] that they can basically do anything they want to do and they will be protected by the court,” Dobranski said.
Referring to Higuera's alleged failure to record a medical reason for the particular 1994 late-term abortion in question, Dobranski said, “He didn't even care enough to do that.”
An April 17 Associated Press story said that Higuera's defense is based on doctor-patient privacy. His lawyers will also argue, the report said, that the Michigan statute under which he has been charged is unconstitutional.
Dobranski, whose college is located in Ypsilanti, Mich., described his state's Supreme Court as “judicially conservative,” adding that he expects it will uphold the Appeals Court ruling on the legality of the state's abortion statute “by more than a bare majority.”
As to the possible effects of a prosecution in the Higuera case, Dobranski said it might encourage other pro-lifers who think there are no limits to the abortion license to prosecute in their own states.
“If the prosecution is successful,” Dobranski said, “it would cause other people to think of pursuing this avenue.”