Michigan's Democratic governor sues to get rid of 1931 state ban on abortion

Michigan Gov. Gretchen Whitmer (D) said Thursday she has filed a lawsuit to have the state supreme court decide whether Michigan's constitution protects the right to abortion.

The governor is challenging a 1931 state law that bans abortion at all stages of pregnancy but has not been enforced in the state since the U.S. Supreme Court's 1973 Roe v. Wade decision. Planned Parenthood of Michigan has filed a concurrent lawsuit against the same law.

“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” Whitmer said in a statement. “If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance—including in cases of rape and incest— and deprive Michigan women of the ability to make critical health care decisions for themselves. This is no longer theoretical: it is reality. That’s why I am filing a lawsuit and using my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion."

She explained that she would use her executive authority to go directly to the state supreme court, rather than through the lower courts or the Republican-controlled legislature. The high court has a 4-3 majority of Democrat-nominated justices.

Whitmer wants the court to recognize a constitutional right to abortion under the due process clause of the Michigan constitution. She is also asking for the court to prevent the state government from enforcing the 1931 abortion ban, which does not include exceptions for rape or incest.

"The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society," the governor's office argues.

Whitmer's lawsuit was filed in anticipation that the 6-3 majority of Republican-nominated justices on the U.S. Supreme Court will either overturn Roe or create new restrictions on the right to abortion this summer with a ruling on Mississippi's 15-week abortion ban. Michigan is one of 26 states that have so-called "trigger" laws on the books that would ban or severely restrict abortions if Roe v. Wade is overturned, according to the Guttmacher Institute.

“Overturning Roe will criminalize abortion and impact nearly 2.2 million Michigan women. If a woman is forced to continue a pregnancy against her will, it can have devastating consequences, including keeping families in poverty and making it harder for women and families to make ends meet," Whitmer said.

She continued: "A near total abortion ban would rob women of their reproductive freedom and the ability to decide whether and when to have a child. It also would rob women of their economic freedom and their right to decide whether to become a parent: the biggest economic decision a woman will make in her lifetime. No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan. If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in. We must trust women—our family, neighbors, and friends—to make decisions that are best for them about their bodies and lives.”

Several Democratic governors have taken action in recent months to guarantee the right to abortion in their states or to provide safe haven for women seeking to kill their unwanted babies. Colorado, for example, enacted a law in March that enshrines the right to abortion through all stages of pregnancy into state law.

At the same time, many Republican-controlled states are advancing laws to restrict abortion, such as Mississippi and Texas, which have laws prohibiting abortions after a fetal heartbeat can be detected, or Oklahoma, where a bill banning nearly all abortions in the state just passed the state House.

Both sides of the debate appear to believe the Supreme Court will roll back abortion rights this summer, which could create a situation where the people of each state in the union decide through popularly elected governments what the future of abortion in their state will be.

Pro-life groups in Michigan condemned the governor's lawsuit, questioning her argument that the state constitution protects the right to abortion.

"While the legality of abortion is contingent upon democratic structures, it is unfortunate that the judicial branch is being used to try to invalidate a longstanding policy approved by elected representatives and left untouched by the Legislature for nearly a century since," said Rebecca Mastee, a policy advocate with the Michigan Catholic Conference, according to the Detroit News.

Genevieve Marnon, legislative director for Right to Life of Michigan, observed that pro-choice activists are circulating a petition to enshrine a woman's right to abortion in the state constitution.

"Why would they be doing a petition initiative to put it in our constitution if it already exists?” Marnon asked.

The Detroit News reports that Whitmer's position appears to contradict a 1997 decision made by a three-judge panel on the state court of appeals, which said it could not conclude there was a right to abortion under the Michigan constitution.