Gov. Gretchen Whitmer said Thursday she filed a lawsuit challenging Michigan’s 1931 ban on abortion in anticipation that the U.S. Supreme Court will potentially overturn the landmark Roe v. Wade decision that enshrined abortion as a constitutional right.
Michigan’s 1931 ban on abortion criminalizes the act of providing an abortion but has essentially lain dormant since Roe v. Wade was decided. The ban would be enforceable should the 1973 decision be overturned.
Whitmer said she would use her executive authority to seek immediate intervention from the Michigan Supreme Court, rather than go through the lower state courts first.
The state’s high court has a 4-3 majority of Democratic-nominated justices.
A copy of the lawsuit, which was filed in Oakland County Circuit Court, was not immediately available.
“This is no longer theoretical: it is reality,” Whitmer said in a statement of the possibility of Roe v. Wade being overturned. “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.”
Genevieve Marnon, legislative director for Right to Life of Michigan, said she had not yet seen the lawsuit but the group would be exploring what role it would take in defending the 1931 law.
Marnon noted that a petition currently in circulation — called the Reproductive Freedom for All petition — already is seeking to enshrine a woman’s right to abortion in the state constitution, contradicting the governor’s argument that the right already exists in the Michigan Constitution.
“Why would they be doing a petition initiative to put it in our Constitution if it already exists?” Marnon asked.
The lawsuit names 13 county prosecutors who may be called on to enforce the 1931 law in counties where abortion clinics are present.
In a statement Thursday, seven of those county prosecutors — all Democrats — said they supported the governor in her effort and would not enforce Michigan’s 1931 law should Roe v. Wade be overturned.
“Those archaic statutes are unconstitutionally and dangerously vague, leaving open the potential for criminalizing doctors, nurses, anesthetists, health care providers, office receptionists — virtually anyone who either performs or assists in performing these medical procedures,” the letter said from Wayne County Prosecutor Kym Worthy, Oakland County Prosecutor Karen McDonald, Ingham County Prosecutor Carol Siemon, Washtenaw County Prosecutor Eli Savit, Genesee County Prosecutor David Leyton, Marquette County Prosecutor Matthew Wiese and Kalamazoo County Prosecutor Jeffrey Getting.
Whitmer’s lawsuit seeks an order from the Michigan Supreme Court upholding abortion as a constitutional right under the state Constitution’s due process clause and stopping enforcement of Michigan’s 1931 ban on abortion. The due process clause includes a right to privacy and bodily autonomy and the constitution’s equal protection clause guarantees women equal rights.
Attorney General Dana Nessel, a Democrat, has said she would not enforce the 1931 law should Roe v. Wade be overturned, but county prosecutors also have the authority to bring charges under the law.
The Michigan Supreme Court often prefers to have the lower courts weigh in on issues rather than expedite decisions — except in emergency cases.
Just last week, the high court denied Nessel’s request to appeal a lower court decision that found epidemic orders issued by the Michigan health department to be unconstitutional. Two out of the seven justices indicated they wanted to hear an expedited appeal.
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