Doc Charged for Late-Term Abortion

D E T R O I T, April 17 -- In a case drawing attention from both sides of the abortion debate, a doctor faces possible jail time for performing a third-trimester abortion on a healthy woman.

Under a state law that predates the U.S. Supreme Court's legalization of abortion, Michigan prosecutors have charged Dr. Jose Higuera with felonious abortion.

Higuera is the first doctor in Michigan, and may be the first in the country, to be criminally prosecuted for abortion since the U.S. Supreme Court's landmark 1973 decision in Roe vs. Wade.

The 61-year-old gynecologist says the 1994 abortion was protected by doctor-patient privacy and that Michigan's statute is unconstitutional. No trial date has been set.

Michigan and 39 other states prohibit late-term abortions except to preserve the health or life of the mother, a decision usually left to the doctor.

No Clear Reason?

Although Michigan law technically prohibits abortion, the U.S. Supreme Court's ruling only allows bans on abortions during the third trimester. Michigan's highest court subsequently banned abortion after "viability," but the wording of the state law outlawing abortion never changed.

"Viability" is the point when the fetus can be expected to survive outside the womb. The meaning of viability has changed over time, as technology allows premature babies to survive at younger ages. Viability also depends on the pregnancy.

Today, the earliest point of viability is considered at 24.5 weeks. The state claims the fetus aborted by Higuera was 28 weeks.

Higuera's crime, according to state prosecutor Mark Blumer, is that he did not have a clear medical or health reason to perform the late abortion.

"Had the mother's health been jeopardized by the pregnancy, there would not be a criminal prosecution. There's no doubt about that," Blumer said.

"What we've got is the classic gray area. A woman went in to the doctor's office and wanted an abortion for no good reason. And we have a doctor who was willing to give it. That's why this case is so different."