The Washington PostDemocracy Dies in Darkness

Opinion Democratic governors look for ways to protect abortion rights

Michigan Gov. Gretchen Whitmer (D) attends a White House event with President Biden on March 9. (Patrick Semansky/AP)
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In 2018, Democrats in Michigan made a historic statement by putting forward an all-female ticket for every statewide office. Every one of them was a champion of abortion rights — and every one of them won.

Michigan, though one of the most tightly fought swing states in the country, is also a place where support for access to abortion is strong. Nearly 70 percent of voters in one recent poll expressed support for the Supreme Court’s 1973 Roe v. Wade decision establishing abortion as a constitutional right.

However, if the court does what many people expect it to do in an upcoming Mississippi case and overturns Roe, the law governing abortion in Michigan will revert to one of the most extreme in the country: a 1931 measure, unenforceable after Roe but still on the books, that makes it a felony to provide the procedure, except where necessary to save the life of the pregnant woman.

“I think it’s very clear: The assault on women’s privacy rights, health rights, and bodily autonomy is not theoretical. It is a very real and present danger,” Gov. Gretchen Whitmer (D) told me. Given that both chambers of the Michigan legislature are controlled by Republicans, Whitmer says there is no chance they would vote to get rid of the old law.

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So last week, the governor took another tack, an aggressive one. Using powers specific to her office that allow her to leapfrog normal legal processes, Whitmer filed a lawsuit to put the question of whether abortion is a protected right under the Michigan Constitution directly to the state Supreme Court, an elected body with a slight Democratic majority.

Whitmer acknowledges that, legally speaking, she is rolling the dice in seeking to apply state constitutional protections under its due process and equal protection clauses. “Here’s the thing: The [Michigan] Supreme Court has never weighed in on this, and that’s why it’s important to do so right now,” she said. “Regardless of how people personally feel about abortion, it’s a woman’s health and well-being that should be driving these important medical decisions. That’s what’s so important and what’s at stake here. I’m confident in our legal case that we’re bringing, but I can’t predict precisely what the outcome’s going to be.”

Whitmer added that she hopes the state Supreme Court will move quickly, before the end of June, when the U.S. Supreme Court is expected to issue its decision in the Mississippi case. That would ensure there is no gap during which Michiganders would lose their access to abortion if Roe is overturned.

For Democratic governors in deep-blue states such as New York and California, protecting abortion in a post-Roe world is a given. Not so for those in more conservative or closely divided ones. “Many of us who have these antiquated laws on the books, or have got hostile legislatures that don’t believe in this right and are even making it more difficult for women, I think are assessing what tools we have,” Whitmer said.

As abortion foes in those states grow more emboldened to push restrictive measures, these governors have increasingly become the biggest obstacle standing in their way.

In Wisconsin, Pennsylvania, North Carolina and Kansas, for example, Democratic governors have used their veto power to block antiabortion measures sent to them by GOP legislatures that do not have the numbers to override.

For Whitmer, who is running in what many expect to be a close race for reelection this year, the abortion issue has also shifted the political environment. In 2018, she was elected as a moderate who pledged to deal with the state’s everyday headaches; her rallying cry was “fix the damn roads.”

Then came the coronavirus pandemic, where Whitmer’s approval rating took a hit over her decision to order lockdowns. Nor were slumping poll numbers the most sinister thing she confronted, as Whitmer became a target of angry protests on the right. On Friday, a federal jury in Grand Rapids, Mich., acquitted two men of conspiring to kidnap her in 2020 and deadlocked on counts against two others, apparently agreeing with defense claims that the defendants had been entrapped by FBI agents.

Now, Whitmer finds herself fighting on another unanticipated front. “I think four years ago, we never could have imagined how [quickly] a woman’s right to make her own decisions about her body and her health could be taken away,” she said. “That’s how precarious this moment is, and that’s why we have to take action now.” Even though, in Michigan, the only option might be making a bet on an uncertain legal course.

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