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Michigan Gov. Whitmer sues in bid to protect access to abortion

Michigan Gov. Gretchen Whitmer (D) in October 2020 in Detroit. (Drew Angerer/Getty Images)

Michigan Gov. Gretchen Whitmer (D) filed a lawsuit Thursday seeking to keep abortion legal in her state if the Supreme Court rolls back its landmark Roe vs. Wade ruling.

A 1931 Michigan law banning abortion has been superseded for nearly 50 years by the Roe decision. But if the high court overturns the nationwide right to abortion or leaves it to states to decide, the legislation could take effect. Whitmer is attempting to prevent that, asking that the state Supreme Court declare abortion protected under Michigan’s Constitution.

“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,” she said in a statement. “This is no longer theoretical: it is reality.”

The move comes amid a flurry of state-level actions being undertaken amid the nation’s most serious threat to abortion access in almost five decades. In anticipation that the Supreme Court’s conservative majority will scale back Roe, Republican-led states have approved new restrictions while Democratic-led states shore up protections. The measures have the potential to reshape the U.S. abortion landscape by this summer, when a ruling is expected from the high court over the constitutionality of Mississippi’s 15-week ban.

In what her office cast as the first lawsuit filed by a governor to protect abortion access since the Supreme Court indicated a willingness to potentially weaken Roe, Whitmer is suing prosecuting attorneys in the 13 Michigan counties where abortion providers operate. The attorneys would be required to prosecute violations of the state’s abortion law if it took effect.

Seven Democratic prosecutors named in the suit said in a joint statement that they support Whitmer’s effort to preserve reproductive freedom. They affirmed the right to choose, noting that Michigan’s “archaic” legislation criminalizing abortion was passed when no women served in the state legislature.

“We believe those laws conflict with the oath we took to support the United States and Michigan Constitutions and to act in the best interest of the health and safety of our communities,” the statement said. “We cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities.”

Michigan’s 1931 law, which echoes its 1846 predecessor, makes providing an abortion a felony except in cases where ending a pregnancy is necessary to save the life of the pregnant woman. If the procedure results in the woman’s death, the offense is considered manslaughter. There is no exception for rape or incest.

Whitmer called it “one of the most extreme laws in the country” in an interview with the Detroit Free Press. She’s using her power as governor to ask that the state Supreme Court take up her lawsuit directly, speeding up the process by circumventing lower courts.

The complaint filed in Oakland County circuit court argues the legislation violates the Michigan Constitution’s due process right to privacy and equal protection clause forbidding discriminatory laws. It asks that the court prevent enforcement of the law and declare that the state constitution protects the right to abortion.

“The question of how to construe (the statute) in light of changing federal law, and whether Michigan residents may seek a medically safe and necessary procedure is necessary now,” the complaint states, “and may soon become even more so because of the U.S. Supreme Court’s imminent decision.”

Access to abortion is necessary to allow women “to participate fully and equally in society,” the complaint argues, describing it as a “common, safe, and key component of reproductive healthcare.”

Michigan Gov. Gretchen Whitmer (D) and activists explain Proposal 3, a midterm ballot measure which would enshrine abortion rights in the state's constitution. (Video: Hannah Jewell, Lindsey Sitz, Ross Godwin/The Washington Post, Photo: Emily Elconin/The Washington Post)

Planned Parenthood of Michigan and its chief medical officer, Sarah Wallett, filed a similar lawsuit Thursday in the court of claims, arguing that enforcement of the state ban “would have devastating consequences” for patients, providers and communities across the state.

About 29,670 abortions were reported in Michigan in 2020, where 27 providers operate, according to the complaint. Eighty-nine percent of the procedures were performed in the first 12 weeks of gestation. The vast majority were performed without immediate complications, the complaint said.

In her statement, Whitmer said that health, rather than politics, should drive medical decisions. The governor, who is up for reelection this fall, previously urged the state legislature to repeal the 1931 prohibition. But both chambers are Republican-controlled, and her appeal has not seen much momentum.

“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,” Whitmer said. “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 governor’s move drew condemnation from Right to Life of Michigan. The group’s president, Barbara Listing, blasted it in a statement as “a frivolous lawsuit that should be immediately dismissed by the Michigan Supreme Court.” She added, “Governor Whitmer is ignoring the voices of Michiganders by bypassing all lower courts and court precedent just as the U.S. Supreme Court did when they decided on Roe v. Wade.”

Fifty-six percent of Michigan residents said abortion should be legal in all or most cases, a 2018 survey by PRRI found, while 36 percent said it should be illegal in all or most cases. Those beliefs are similar to those of the Americans overall: 54 percent said abortion should be legal in all or most cases and 40 percent said it should be mostly or always illegal.

Scott Clement contributed to this report.