Everyone Is Suing Michigan Over 1931 Law Making Abortion A Felony (Including The Governor)

Everyone Is Suing Michigan Over 1931 Law Making Abortion A Felony (Including The Governor)
My Body Belongs To Me sign at a Stop Abortion Bans Rally i… | Flickr

In just a few months, the United States Supreme Court is expected to overrule Roe v. Wade. Things will go back to the way they were in the bad old days, when states decided for themselves whether or not abortion would be legal. Some states are preparing for this by ensuring that abortion will be banned as soon as the Court allows it, while others have been working to ensure that their laws will protect the right to abortion.

So far, 15 states and Washington DC have introduced language into their state laws and constitutions that protects abortion rights, while 26 states have abortion bans that will go into effect as soon as Roe goes.

One of those states is Michigan, where a recent poll showed that voters overwhelmingly support the right to choose, with 67 percent supporting Roe and a mere 19 percent wanting to see it overturned.

Map showing the legal status of abortion in various states if Roe is overturned

Michigan's abortion ban, passed 91 years ago in 1931, makes it an actual felony to have an abortion. While the law has not been enforced since Roe v. Wade was decided in 1973, it has never been repealed. This means that without intervention, the law will go into effect as soon as the Supreme Court issues its opinion.

Governor Gretchen Whitmer agrees with the majority of her constituents, but due to the state's legislature being controlled by the GOP, she's unlikely to have their help in passing any law protecting these rights.

So she's suing the state on the grounds that the law violates the right to bodily integrity enshrined in the Michigan constitution.

Via Detroit Free Press:

There are two fundamental arguments here — around due process, privacy and bodily autonomy, and under the equal protection clause," Whitmer told the Free Press. The 1931 law, she said, is "based on paternalistic justifications that have made Michigan women second-class citizens." [...]

"It is polarizing in some camps. But this is overwhelmingly supported by the majority of people in Michigan" — seven in 10, Whitmer said, referencing a recent poll — "and regardless of how we personally feel about abortion, a woman's health, not politics should drive important medical decisions. ... With the dynamics on the Supreme Court, this is not a remote possibility. It's become very clear that this is highly likely to happen. We have been investigating and strategizing about how we protect this right for women in Michigan," Whitmer said.

The Michigan Supreme Court, where Democrats currently enjoy a 4-3 majority, will be taking Whitmer's case up directly, thanks to the gubernatorial power of "executive message" which allows the governor to bypass lower courts and go straight to the top.

Hers isn't the the only lawsuit in town (or, rather, in state) — Planned Parenthood of Michigan and the ACLU are also filing lawsuits meant to protect abortion rights in Michigan.

Planned Parenthood of Michigan and local abortion provider Dr. Sarah Wallet have filed a lawsuit to keep Michigan Attorney General Dana Nessel from enforcing the ban or prosecuting those who have or perform abortions, should it not be overturned.

“I’m an abortion provider, and the care my colleagues and I provide every day to our patients is essential to their ability to lead the lives they choose,” Dr. Wallet said in a statement to Detroit Metro Times. “I joined this suit because it is fundamental to my oath as a physician to do no harm — and being forced to deny abortion care and violating the basic rights of my patients would cause them immense, irreversible harm. Michiganders deserve to know that the health care they have relied on for 50 years will be there when they need it, no matter what.”

The ACLU is filing a suit similar to Whitmer's, asking the Supreme Court to find that the 1931 law violates their state constitution. They're also working hard to collect the requisite 425,059 signatures on a petition to get their “Reproductive Freedom for All” measure on the ballot in November. This measure would add an amendment to the state constitution allowing pregnant people to make decisions about their own pregnancy without political interference and ensure that "no one can be punished for having a miscarriage, stillbirth, or abortion."

On top of that, seven state prosecutors have promised to not enforce the ban in the case that these other measures fail.

Via Detroit Metro Times:

This includes Wayne Country Prosecutor Kym Worthy, Oakland Country Prosecutor Karen McDonald, Ingham County Prosecutor Carol Siemon, Washtenaw County Prosecutor Eli Savit, Kalamazoo County Prosecutor Jeffrey Getting, Genesee County Prosecutor David Leyton, and Marquette County Prosecutor Matthew J. Wiese.

“We believe those laws conflict with the oath we took to support the United States and Michigan Constitutions, and to act in the best interest of the health and safety of our communities,” a joint statement reads. “We cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities. Instead, we will continue to dedicate our limited resources towards the prosecution of serious crimes and the pursuit of justice for all.”

Well that's good.

Sadly, it seems unlikely that any of the other states that still have anti-abortion trigger laws on the books would attempt to overturn them before Roe itself is overturned, at least through their state legislatures, given that most of them are still passing or trying to pass horrific anti-choice laws — but if Whitmer and these groups can pull this off without involving the Republican-majority state legislature, this could provide a future roadmap for other states to challenge these laws.

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Robyn Pennacchia

Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse


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