Gov. Gretchen Whitmer filed lawsuit Thursday challenging Michigan's 1931 ban on abortion in anticipation that the U.S. Supreme Court will potentially overturn the landmark Roe v. Wade decision that enshrined abortion as a constitutional right.
Her lawsuit was filed almost in tandem with a similar suit by Planned Parenthood of Michigan.
The suits contain similar arguments but differ in that Planned Parenthood's litigation was filed in the Michigan Court of Claims, while Whitmer filed in Oakland County Circuit Court and is using her executive authority to seek immediate intervention from the Michigan Supreme Court.
Michigan's 1931 ban on abortion criminalizes the act of providing an abortion but has essentially lain dormant since Roe v. Wade was decided. The ban would be enforceable should the 1973 decision be overturned.
Whitmer said she would use her executive authority to seek immediate intervention from the Michigan Supreme Court, rather than go through the lower state courts first. The state's high court has a 4-3 majority of Democratic-nominated justices.
"This is no longer theoretical: it is reality," Whitmer said in a statement of the possibility of Roe v. Wade being overturned. "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."
Genevieve Marnon, legislative director for Right to Life of Michigan, said the group would be exploring what role it would take in defending the 1931 law.
Marnon noted that a petition currently in circulation — called the Reproductive Freedom for All petition — already is seeking to enshrine a woman's right to abortion in the state constitution, contradicting the governor's argument that the right already exists in the Michigan Constitution.
"Why would they be doing a petition initiative to put it in our Constitution if it already exists?” Marnon asked.
The Michigan Catholic Conference on Thursday criticized the filing.
"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, policy advocate for the conference.
Both Whitmer and Planned Parenthood's suits would challenge a 1997 state Court of Appeals decision in which a three-judge panel found it could not conclude there was a right to abortion under the Michigan Constitution.
Whitmer's lawsuit names 13 county prosecutors who may be called on to enforce the 1931 law in counties where abortion clinics are present.
In a statement Thursday, seven of those county prosecutors — all Democrats — said they supported the governor in her effort and would not enforce Michigan's 1931 law should Roe v. Wade be overturned.
"Those archaic statutes are unconstitutionally and dangerously vague, leaving open the potential for criminalizing doctors, nurses, anesthetists, health care providers, office receptionists — virtually anyone who either performs or assists in performing these medical procedures," the letter said from Wayne County Prosecutor Kym Worthy, Oakland County Prosecutor Karen McDonald, Ingham County Prosecutor Carol Siemon, Washtenaw County Prosecutor Eli Savit, Genesee County Prosecutor David Leyton, Marquette County Prosecutor Matthew Wiese and Kalamazoo County Prosecutor Jeffrey Getting.
Whitmer's lawsuit seeks an order from the Michigan Supreme Court upholding abortion as a constitutional right under the state Constitution due process and equal protection clauses and stopping enforcement of Michigan's 1931 ban on abortion. The due process clause includes a right to privacy and bodily autonomy and the constitution's equal protection clause guarantees women equal rights.
Attorney General Dana Nessel, a Democrat, has said she would not enforce the 1931 law should Roe v. Wade be overturned, but county prosecutors also have the authority to bring charges under the law.
The Michigan Supreme Court often prefers to have the lower courts weigh in on issues rather than expedite decisions — except in emergency cases.
Just last week, the high court denied Nessel's request to appeal a lower court decision that found epidemic orders issued by the Michigan health department to be unconstitutional. Two out of the seven justices indicated they wanted to hear an expedited appeal.
Planned Parenthood's suit, similar to Whitmer's, seeks an order from the Michigan Court of Claims declaring abortion is protected under Michigan's constitution and stopping Nessel or any county prosecutor from enforcing the 1931 law which criminalized providing abortions.
Abortion providers across the state have lived with "uncertainty" over the future of abortion access because of the upcoming U.S. Supreme Court decision, said Dr. Sarah Wallett, an abortion provider and chief medical officer for Planned Parenthood of Michigan.
The ban, the suit says, is "unconstitutionally vague" and violates a woman's rights to privacy, liberty, bodily integrity and equal protection under both the state constitution and the Elliott-Larsen Civil Rights Act.
The lawsuit notes the Michigan Supreme Court has never addressed the legality of the ban in and of itself, though the high court ruled in 1973 that it was unenforceable after Roe v. Wade declared abortion a constitutional right.
But a U.S. Supreme Court decision potentially overruling Roe could come "any day now," the lawsuit said.
"Once that court rules, the Michigan Supreme Court's saving construction may no longer protect abortion providers from felony prosecution under the Criminal Abortion Ban," the suit said.
"Accordingly, recognition of the Criminal Abortion Ban's unconstitutionality as a matter of Michigan law is both urgently needed and long overdue."
Whitmer has repeatedly said she wants to see the Legislature repeal the state's law. A Jan. 3-7 Detroit News-WDIV poll found that 66% of likely Michigan voters also want that law repealed compared with 22% who want to keep the law in place. The poll of 600 likely voters had a margin of error of plus-minus 4 percentage points.
Democrats have introduced bills to repeal the 1931 law, but the state's Republican-controlled Legislature opposes them and has taken no action.
The 1931 law, known as Act 328, makes it a felony to perform an abortion. At the time it was written, abortions were a significant cause of maternal deaths. One researcher in 1931 estimated that 15,000 women a year were dying across the country because of abortion.
Michigan borders states that also would restrict abortion if Roe is overturned, meaning those seeking abortion would go primarily to Illinois, Guttmacher data shows. Illinois has some of the least restrictive abortion laws in the country after the state established abortion as a "fundamental right" in 2019. Clinics there are preparing for an influx in out-of-state patients if Roe falls, the Chicago Tribune reported.
If Roe were overturned, it would affect 2.2 million Michigan women ages 15 to 49, putting the statewide impact behind only Texas, Florida, Ohio and Georgia, according to the New York-based Guttmacher Institute, a pro-choice research group and a leading provider of abortion data.
Depending on the specifics of the ban, it could mean an average trip of 260 miles to seek an abortion, roughly four hours in one direction to reach a destination outside of Michigan. Under current legal status, Guttmacher notes the average person drives between 11 and 19 miles one way to seek an abortion.
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(Detroit News staff writer Hayley Harding contributed to this report.)
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