Gov. Gretchen Whitmer is suing 13 county prosecutors in Michigan, with the endgame of getting an old abortion ban pulled off the books and making abortion a constitutional right in the state.
Whitmer’s team is filing the 27-page lawsuit in Oakland County Circuit Court on Thursday, April 7, according to a news release from the governor’s office.
Abortion is legal in Michigan right now, but only because of the 1973 Roe v. Wade U.S. Supreme Court decision, which legalized abortion nationwide. That ruling has the potential to be overturned or undercut; however, as the court considers Dobbs v. Jackson.
A majority of the U.S. Supreme Court justices are considered conservative, with six of the nine appointed by Republicans.
If Roe v. Wade is overturned, Michigan’s 1931 abortion ban could be enforceable. The law criminalizes abortion for anybody administering the procedure or drug to produce a miscarriage, making it a felony in all cases except when abortion is necessary to preserve the mother’s life.
“Its passage was rooted in a desire to control women and reinforce patriarchy and therefore is not substantially related to an important governmental objective,” Whitmer’s lawsuit claims.
Whitmer argues the ban violates the Michigan Constitution’s due process clause, which provides a right to privacy and bodily autonomy. The ban violates the state constitution’s equal protection clause, saying the ban “was adopted to reinforce antiquated notions of the proper role for women in society,” per the news release.
“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,” Whitmer said in the release. “This is no longer theoretical; it is reality.”
Abortion was first criminalized in Michigan in 1846.
There were 29,669 abortions performed in Michigan in 2020, the most in a year since 1996. There were more than 49,000 abortions in Michigan in 1987. In 2020, 89% of Michigan abortions were within the first 12 weeks of a pregnancy.
“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.
Whitmer is suing the prosecutors in the 13 Michigan counties with an abortion clinic: Emmet, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw and Wayne counties.
Prosecutors in seven of those counties released a joint statement in support of Whitmer’s lawsuit on Thursday, from Oakland, Ingham, Washtenaw, Genesee, Wayne, Marquette and Kalamazoo counties.
If Roe v. Wade was overturned at the federal level, the prosecutors in those counties would have formal authority to charge violators of the state law, which is why Whitmer is filing the lawsuit against them, per the governor’s office.
Whitmer is going a step beyond the lawsuit. The governor is also using her executive powers to ask the Michigan Supreme Court to consider the constitutionality of abortion, strike down the 1931 law and issue a decision as soon as possible.
The Michigan Supreme Court does not have to take up the issue.
A 1997 Court of Appeals ruling says the Michigan Constitution does not recognize the right to an abortion, which is partly why Whitmer’s office says the issue should go to the state’s top court. It could take months to move through lower courts via the traditional route, the governor’s office said.
There’s an “ongoing, nationwide assault on abortion,” the news release said. In her statement, Whitmer said she will “fight like hell” for reproductive freedom.
A January 2022 Local 4/Detroit News poll found 77.2% of respondents believe abortion should be up to the woman, while 9.7% said it should be regulated by law. Less than one in five supported overturning Roe v. Wade.
The 600-person Michigan poll was conducted by Glengariff Group and had a margin of error of +/-4%.
“A woman must be able to make her own medical decisions with the advice of a health care professional she trusts,” Whitmer said. “Politicians shouldn’t make that decision for her.”
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