Washington — Gov. Gretchen Whitmer said her work challenging Michigan’s 1931 ban on abortion in state court is “more important than ever” after a leaked draft opinion showed the U.S. Supreme Court initially has voted to overturn the landmark Roe v. Wade decision.
“I’ll fight like hell to protect abortion access in Michigan,” the Democratic governor tweeted late Monday in response to the news.
A draft majority opinion circulated within the court in February and obtained by Politico said the 1972 ruling, Roe v. Wade, which guaranteed women constitutional protections for abortion rights, was “egregiously wrong from the start,” Justice Samuel Alito wrote.
“We hold that Roe and Casey must be overruled,” Alito said in the draft opinion. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
It’s unclear whether changes have since been made to the draft or if justices have since changed their votes. The High Court’s opinions are not official or final until published.
If Roe is overturned, experts have said Michigan likely will revert back to a 1931 law, known as Act 328, that makes abortion a felony in the state, with no exceptions for rape or incest.
Michigan Attorney General Dana Nessel repeatedly has said she would not enforce the law, arguing that doing so would “drive women to back alleys again.”
“I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy,” said Nessel in 2019, suggesting that doing so would be “sending women to be butchered.”
Oakland County Prosecutor Karen McDonald on Monday issued a similar promise: “If Roe v Wade is overturned, I will do everything in my power to protect the over half a million women in Oakland County and their right to make choices over their own bodies.”
Genevieve Marnon, legislative director for Right to Life Michigan, said she was cautiously optimistic about the High Court’s draft ruling Monday. She acknowledged things may have changed since it was written, but she considered what she had seen to be a win.
“If ultimately Roe is overturned, we will be celebrating tremendously,” she said. “Those are unborn lives in Michigan and everywhere that will be saved.”
Democratic lawmakers slammed the draft as portending “devastating” effects for women in Michigan and across the country. “This is outrageous!” tweeted U.S. Sen. Debbie Stabenow, D-Lansing.
“If tonight’s news is true, Michigan’s 1931 state law banning abortion would snap back into effect, making any abortion illegal in our state — even if the mom will die, or if she was raped by a family member. No exceptions,” Democratic U.S. Rep. Elissa Slotkin tweeted.
“My poor mother is turning over in her grave. The House has already voted to codify Roe — let all Senators be on record on this one in an up or down vote.”
Rep. Lisa McClain, R-Bruce Township, tweeted that overturning Roe would “save millions of innocent, unborn babies. I pray the Supreme Court makes it official and formally overturns this attack on the unborn.”
Republican U.S. Rep. Bill Huizenga, R-Holland, said if true, the news is the “correct decision.”
“This unprecedented leak of a draft ruling is an effort to overtly inject politics into the court itself. This individual should not be celebrated. They should be held accountable for their egregious breach,” Huizenga said.
“I am praying for the safety of all the Justices during these extraordinarily challenging and unprecedented times.”
Whitmer and Planned Parenthood filed separate lawsuits in Michigan courts last month to strike down the state’s abortion ban.
Planned Parenthood of Michigan was not immediately available to comment, but Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, noted in a statement that abortion is still a legal right, and that Planned Parenthood’s health centers are open.
“This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade,” she said.
“While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide. Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight.”
A ballot initiative to establish abortion rights in the Michigan Constitution is underway, which U.S Rep. Andy Levin, D-Bloomfield Township, referred to Monday.
“As drafted, this is an egregious, worst case scenario,” Levin tweeted. “I hope it serves to wake folks up to what’s at stake. Michigan, it’s time to get #ReproductiveFreedomForAll on the ballot!!”
Alito’s opinion would overturn a ruling by the 5th Circuit U.S. Court of Appeals, which blocked a Mississippi law that bans nearly all abortions after the 15th week of pregnancy.
The Circuit Court had ruled that both precedent in Roe and Planned Parenthood v. Casey prohibited states from banning abortions before fetal viability. But Alito in his draft concludes: “The Constitution does not prohibit the citizens of each State from regulating and prohibiting abortion.”
The justices heard arguments in the case in December, and a final decision is expected in the next two months.
Experts say that banning abortion likely would mean that more pregnancies would be carried to term, but it likely wouldn’t stop the procedure altogether. Those who can afford to travel may do so to seek abortions.
Many groups have stepped up in the wake of restrictive laws imposed in states like Texas to help people seek abortion in other states. But those groups are likely to be stretched thin if abortion is outlawed around the country.
Research from the Guttmacher Institute, a pro-choice research group and a leading provider of abortion data, shows that many of the states closest to Michigan also would likely restrict abortion if Roe is overturned.
Michiganians who wanted to travel to get an abortion likely would head to Illinois, which has some of the least restrictive abortion laws in the country after the state established abortion as a “fundamental right” in 2019.
State Rep. Laurie Pohutsky, D-Livonia, chair of the Progressive Women’s Caucus, said Texas has illustrated what abortion bans look like with people “fleeing” to seek care in other states.
“Michigan’s trigger law banning abortion will leave pregnant people of this state in similar crises,” Pohutsky said in a statement.
“Our task is clear: Amend the state constitution via ballot initiative, overturn the 1931 law and pass the Reproductive Health Act. Abortion is a right, and if we can no longer count on the courts to protect it, we will do it ourselves.”
Reclaim, a Michigan-based nonprofit promoting abortion access, highlighted the urgency of the issue shortly after the leak Monday.
“FIVE ALARM FIRE!!” the group posted on its Facebook page. “It’s time to get to work NOW!!”
Guttmacher estimates that in 2017, there were 30 facilities providing abortions across Michigan. Overturning Roe likely would mean that all of them would have to end their abortion services, and many of them could close.
There were more than 29,000 abortions reported in Michigan in 2020, the last year data is available, according to the Michigan Department of Health and Human Services. That number is an 8.5% drop from 2019, and a 39.6% drop from 1987, when the most reported abortions were reported in the state.
Data from 2019 from the Centers for Disease Control and Prevention indicate that the average woman in the U.S. who has an abortion is in her 20s and has at least one other child. Black women had 38% of all abortions, while White women had 33%. No one racial group has the majority of abortions.
Staff writer Mark Hicks contributed
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