LANSING, Mich. — Gov. Gretchen Whitmer, a Michigan resident sued to defend abortion rights. Whitmer asked the court in Michigan to recognize the right to abortion as a state constitutional right and to repeal a ban on abortion that had been in place for 176 years. This could be if Roe V. Wade was overturned.
The Democratic governor’s preemptive lawsuit, which was filed in Oakland County against prosecutors in 13 counties with an abortion clinic, came as the U.S. Supreme Court’s conservative majority considers allowing states to ban abortion much earlier in pregnancy and potentially overturning the right. Planned Parenthood of Michigan filed a preemptive suit against the State Court of Claims in an attempt to stop enforcement of the 1931 law. This was based on an 1846 ban.
Whitmer is running for reelection in this year’s election. She was likely to ask that the Michigan Supreme Court take Whitmer’s case immediately and not let it go through lower appellate or trial courts. After the ruling by the federal high court, a favorable decision may allow abortions in Michigan to continue.
“It was important for us to take action now, to ensure that women and providers across the state of Michigan know whether abortions will still be available in the state because it impacts their lives and our health care providers’ practices. It’s crucial that we take this action now to secure and ensure that the Michigan Constitution protects this right that we have had available for 49 years,” the governor told The Associated Press, saying nearly 2.2 million women may lose access to a safe, legal medical procedure.
Michigan is one of eight states that have an abortion ban in place. This was before 1973 Roe decision, which legalized abortion nationally. The states on either side of the abortion debate have taken various steps to make Roe less binding or repealable. This includes making it illegal to carry out an abortion, and prohibiting legal action against those who help or receive abortions.
Michigan’s law makes it a felony to use an instrument or administer any substance with the intent “to procure the miscarriage” of a woman unless necessary to preserve her life.
Whitmer is asking the Michigan Supreme Court declare the state’s constitutional right to abort and strike down the 1931 law. The law could be reinstated if Roe becomes invalid or weaker. In the suit, Whitmer claims that the law was invalidated under the due process or equal protection clauses of Michigan’s state constitution.
Michigan could soon be left with a near-total ban without even exceptions for rape and incest — “one of the most extreme laws in the country,” Whitmer said. Her call to repeal the law has gone nowhere in the Republican-controlled Legislature.
There are four Democratic and three Republican judges on the high court of state.
Whitmer will ask that the court intervene in part to avoid legal uncertainty when the federal high court issues its ruling on Mississippi’s ban on abortions after 15 weeks of pregnancy.
According to the complaint, while Roe was ruled by the Michigan Supreme Court in 1973 that the ban on state abortions had a limited effect, it has led to 50 years worth of federal court litigation that has weakened the right. The state’s high court has not said whether the state constitution protects the right. The Michigan Court of Appeals, in 1997, ruled there is no state constitutional right to abortion — a reason the Michigan Supreme Court should step in immediately, according to her office.
The lawsuit points to “substantial ambiguity” about what the state ban prohibits.
Advocates for abortion rights have started a petition drive to insinuate the right to abortion in the state constitution. They need approximately 425,000 signatures to get the ballot initiative onto the November ballot.
On Thursday, the seven Democratic County Prosecutors named in the suit pledged not to enforce the anti-abortion laws.
“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,” said the elected prosecutors in Wayne, Oakland, Genesee, Washtenaw, Ingham, Kalamazoo and Marquette counties. “Instead, we will continue to dedicate our limited resources towards the prosecution of serious crimes and the pursuit of justice for all.”
Republicans are the six other elected prosecutors who were sued.
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This report was contributed by Corey Williams, an Associated Press journalist from West Bloomfield (Michigan).
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