Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion.
Amidst an ongoing, nationwide assault on abortion, including in some states that have enacted laws banning abortion at conception, without exceptions for rape or incest, Governor Whitmer is stepping up to protect Michigan women and the constitutional right to an abortion established 49 years ago in Roe v. Wade.
“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” said Governor Whitmer. “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. This is no longer theoretical: it is reality. 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.
“However we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions. A woman must be able to make her own medical decisions with the advice of a healthcare professional she trusts – politicians shouldn’t make that decision for her,” Whitmer continued.
“Overturning Roe will criminalize abortion and impact nearly 2.2 million Michigan women. 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. A near total abortion ban would rob women of their reproductive freedom and the ability to decide whether and when to have a child.”
“It also would rob women of their economic freedom and their right to decide whether to become a parent: the biggest economic decision a woman will make in her lifetime. No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan. If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in. We must trust women—our family, neighbors, and friends—to make decisions that are best for them about their bodies and lives.”
The current version of Michigan’s law criminalizing abortion without exceptions for rape or incest was enacted in 1931. In 1973, the passage of Roe v. Wade rendered Michigan’s 1931 ban unconstitutional and abortion became legal in the state of Michigan. This year, Roe could be overturned in the Dobbs v. Jackson case, triggering Michigan’s 1931 abortion ban.
The governor’s action today represents the first time a governor has filed a lawsuit to protect a woman’s right to abortion since the U.S. Supreme Court signaled its recent willingness to consider overturning or circumscribing the federal right to an abortion.
The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution. It also asks the court to stop enforcement of the 1931 Michigan abortion ban.
The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.
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