Gov. Gretchen Whitmer said Thursday she filed a lawsuit 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.
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.
A copy of the lawsuit, which was filed in Oakland County Circuit Court, was not immediately available. The lawsuit names county prosecutors who may be called on to enforce the 1931 law in counties where abortion clinics are present.
"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."
Whitmer's lawsuit seeks an order from the Michigan Supreme Court upholding abortion as a constitutional right under the state Constitution's due process clause 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.
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 1975 decision be overturned.
Attorney General Dana Nessel 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.
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