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Michigan Gov. Gretchen Whitmer filed a motion with the state’s Supreme Court Friday, asking it to “decide if Michigan’s state constitution protects the right to abortion.” The move comes after the U.S. Supreme Court’s decision to overturn Roe v. Wade meant that an old state law banning abortion could soon take effect.
Michigan enacted a law in 1931 that criminalized abortion, without exceptions for rape or incest. But the passage of Roe v. Wade in 1973 superseded Michigan’s ban, which made abortions legal in the state.
However, Michigan is one of nine U.S. states with laws on the books predating Roe, which could allow the state to swiftly outlaw abortion in most cases following the Supreme Court’s decision.
Several states have already enacted legislation protecting the right to an abortion. But passing such a law in Michigan is more difficult because its legislature is majority-Republican and opposes abortion rights. It favors reinstating the 1931 law.
For the time being, however, the 1931 abortion ban is not going into effect. In May, Planned Parenthood filed a lawsuit, claiming that law was unconstitutional. A state judge granted a preliminary injunction, temporarily blocking the the old law from being implemented. Michigan Right to Life and the Michigan Catholic Conference have asked a state court of appeals to vacate the injunction. The GOP-led legislature also filed a brief that also called for the injunction to be lifted and said it would defend the old law in court.
In April, Whitmer preemptively sued 13 county prosecutors with abortion clinics in their jurisdictions in an effort to circumvent the 1931 abortion ban.
In a statement released after the Supreme Court’s Friday decision, the governor noted the fact that court’s pause on implementing the “antiquated 1931 law” is temporary and “has already been challenged.”
Whitmer slammed the state’s Republican lawmakers for “defending this draconian ban” in court. And she noted that some are even pushing for harsher punishment for abortion and contraception providers.
“Some legislators have gone a step further, proposing a 10-year prison sentence for abortion providers and a 20-year sentence for anyone manufacturing, selling or distributing birth control medication,” Whitmer said.
She subsequently filed a motion Friday afternoon with the state’s Supreme Court — where justices backed by Democrats currently hold a 4 to 3 majority — “urging the court to immediately take up my lawsuit to protect abortion in Michigan. We need to clarify that under Michigan law, access to abortion is not only legal, but constitutionally protected. The urgency of the moment is clear—the Michigan court must act now.”
Whitmer vowed to “use every tool in our toolbox to protect women and reproductive health care.”
“I will fight like hell to protect every Michiganders’ right to make decisions about their own body with the advice of a medical professional they trust,” she said. “I will not give in or give up for my kids, your kids, and the future of our great state.”
Whitmer also signed an executive directive last month that instructed state departments and agencies to not cooperate with authorities who want to investigate or prosecute abortions. It also said state departments must identify opportunities to increase protections for reproductive rights.
A January 2022 poll found 67.3% of Michiganders supported Roe v. Wade and 65.7% supported repealing the trigger ban on abortion, according to Whitmer’s statement. That same poll found over 77% of Michiganders believed abortion should be a woman’s decision and a “sizeable majority” agree abortion is a decision to for a woman to make in consultation with a medical professional.
