After a draft opinion from the U.S. Supreme Court overturning Roe v Wade leaked yesterday, Governor Gretchen Whitmer renewed her commitment to protecting abortion access in Michigan.
Last month, the Governor 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. In light of the recent news and amidst the ongoing, nationwide assault on abortion, Governor Whitmer’s fight to protect the constitutional right to an abortion is more critical than ever.
“The words ‘Roe overturned’ are no longer theoretical. I want every Michigander to know—no matter what happens in DC, I’m going to fight like hell to protect access to safe, legal abortion in Michigan,” said Governor Whitmer. “In light of the U.S. Supreme Court’s leaked majority opinion overturning the 49-year-old precedent in Roe v Wade, my lawsuit to protect the right to legal abortion in Michigan is more critical than ever. Last month, I filed a lawsuit and used my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion. Because if Roe is officially overturned by the Supreme Court—which may happen any day now—abortion could become illegal in Michigan in nearly any circumstance, including in cases of rape and incest, because of a 1931 law on the books banning abortion in Michigan. We must protect the nearly 2.2 million women in Michigan who would lose the right to make decisions about their bodies.
“However we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions,” Whitmer continued. “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. 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.”
Michigan’s Pre-Roe Ban
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.
Governor Whitmer’s Lawsuit
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.
Michiganders on Abortion
For Michiganders, this issue is beyond settled. According to a poll from January 2022, 67.3% of Michiganders support Roe and 65.7% support repealing Michigan’s 1931 trigger ban on abortion. Over 77%, believe abortion should be a woman’s decision. A sizeable majority of Michiganders agree that abortion is a decision to for a woman to make in consultation with a medical professional she trusts.
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