A Still-Active 1931 Statute Could Soon Ban Abortions in Michigan. This Lawsuit Aims to Fix That.

By Isaac Constans

April 12, 2022

“We believe that women in Michigan … have an affirmative right to make their own health care decisions, including whether or not they choose to have an abortion,” Lt. Gov. Garlin Gilchrist told The ‘Gander.

Need to Know

  • A Supreme Court decision potentially impacting Roe v. Wade is expected in the coming weeks; many experts predict it will be struck down.
  • If that happens, a 1931 Michigan law criminalizing abortions regardless of stage and even in cases of rape and incest would most likely take effect.
  • Gov. Gretchen Whitmer and her legal team filed a lawsuit with the state Supreme Court to ensure abortion is constitutionally protected. 

UPDATE (May 3): The Supreme Court has voted to overturn Roe v. Wade, according to a draft majority opinion obtained by Politico. Justice John Roberts confirmed that the leak was authentic. The court has not formally announced its decision in the Dobbs v. Jackson Women’s Health case, and votes can still change.

MICHIGAN—As Gov. Gretchen Whitmer took bold legal action to safeguard abortion rights in the state, her running mate and second in command Lt. Gov. Garlin Gilchrist hailed the case as a necessary intervention on behalf of Michigan women and families.

The future of safe and accessible abortion care across the country balances on an upcoming US Supreme Court decision that could overturn Roe v. Wade, the 1973 federal case that protects people’s right to make family planning decisions without government interference. If the current slate of justices goes against their predecessors’ landmark ruling, a dormant 1931 state law banning abortions would likely kick into effect in Michigan, directly impacting more than 2.2 million women. 

Last week, Whitmer filed a lawsuit asking the progressive-leaning Michigan Supreme Court to throw out the state law—considered one of the harshest in the country—and defend abortion access under the state’s constitution.

In an interview with The ‘Gander, Gilchrist said that going through the state Supreme Court is Michigan’s best recourse to brace for the fallout of a Roe reversal, which many experts predict will happen with a conservative majority on the US Supreme Court. With Roe superseding state law, Michigan’s 1931 statute has remained active but powerless; Republican legislators never scrapped it and have recently promised to defend it.  

“That is why we are taking this affirmative step, because we believe that women in Michigan have an affirmative right to choice, to privacy, and to an abortion if they decide it makes sense for them,” said Gilchrist.

As lieutenant governor, Gilchrist is the second-ranking officer in Michigan. He previously has championed abortion rights, telling pro-choice advocates he’s with them “100%.”

Republicans in the Michigan legislature have had every opportunity, Gilchrist said, to overturn what he called the “horrific” state law still on the books and have not yet done so. On the contrary, Republicans running for the positions of governor and attorney general have pledged to enforce the law to its letter, which would criminalize abortions even in cases of rape and incest.

Faced with an uncooperative legislature, Whitmer turned to a rarely used but potent power of the governor’s office: to request the state Supreme Court to directly and expeditiously examine the case she brought forth. Experts forecast that abortion rights in various states could be in murky legal territory immediately following a US Supreme Court decision that strikes down Roe; Michigan would be the second hardest-hit state, a study says. Whitmer’s decision, made using executive messaging, attempts to get ahead of that.

READ MORE: EXCLUSIVE: 66% of Americans Think the Government Shouldn’t Interfere in Reproductive Rights, According to New Poll

“We are using the power the voters of Michigan bestowed upon us to assert this right,” Gilchrist said.

Whitmer’s lawsuit names prosecutors in counties with abortion clinics as plaintiffs, as they would be responsible for taking violations of the 1931 abortion law to court. Several of the prosecutors—including those in Washtenaw, Kalamazoo, Genesee County, and Marquette—put out a statement saying they supported the governor’s effort and would not enforce the archaic law.

Michigan Attorney General Dana Nessel has also refused to defend the state law, fulfilling a campaign promise she made before being elected.

“As this state’s top law enforcement officer, I have never wavered in my stance on this issue, and I will not prosecute women or their doctors for a personal medical decision,” she said in a statement.

Meanwhile, Michigan Planned Parenthood has filed a case with similar aims—but different plaintiffs—in lower court.

The Michigan Supreme Court has side-stepped similar cases before, defaulting to a lower court decision that found the Michigan Constitution does not protect abortion. Neither the US nor Michigan Constitution explicitly mention abortion, but both guarantee a right to privacy and due process.

Now, the court, which has a progressive edge four to three, will have to make a judgment. 

“The state Supreme Court is ultimately where state law is interpreted and settled, and so that is why the governor is taking this action,” Gilchrist said on Friday.

READ MORE: Michiganders Aren’t Buying Into Amy Coney Barrett. Here Are Their Top 4 Reasons.

Anything could happen over the next few weeks. If Roe v. Wade is upheld, then conversations at the state level are moot for the time being. The Supreme Court could also chip away at Roe protections while punting a bigger decision further down the road. Or the state Supreme Court could similarly view some tenets of the 1931 law as constitutional and others as invalid.

The potential outcome that has concerned millions in the state is that abortion care could be banned altogether, save for cases to save the life of the mother. Neighboring states are also weighing so-called “trigger laws” that would restrict access in the event of a Roe reversal.

Whitmer’s lawsuit hinges on several important points—arguments that the state law did not adequately respect women’s rights to privacy and that bodily autonomy is guaranteed by the state constitution’s due process clause. 

“To participate fully and equally in society, Michigan women need access to abortion,” the complaint reads. “Michigan women deserve the freedom and autonomy to plan their lives knowing that they have access to a common, safe, and key component of reproductive healthcare.”

In the executive message delivered to the state Supreme Court reviewed by The ‘Gander, Whitmer contends that the 1931 law is “based on paternalistic justifications and overbroad generalizations about women,” violating the state’s Equal Protection Clause.

Whitmer’s office isn’t viewing this only as an issue of health and equality; they view it as an economical issue for women and families in Michigan, Gilchrist said. 

“The choice to have or not have a child is the single biggest and most impactful decision that a woman will make,” Gilchrist said. 

Gilchrist said that the economic blowback of anti-abortion laws would be felt by the whole state, not just individual women. Research has found that women without access to an abortion experience long-term financial distress, and that “access affects their education, earnings, careers, and the subsequent life outcomes for their children.”

Going through the state Supreme Court is the No. 1 avenue the governor and her legal team have identified to protect abortion rights in Michigan, Gilchrist said. Though he’s aware that they might need a back-up plan, Gilchrist said they’re confident that the state case “will set up an affirmative right in Michigan.”

READ MORE: Michigan GOP Candidate for Governor: Women Who Are Raped Shouldn’t Have Abortions Because It’s Not ‘Heroic’

A recent poll found that more than two-thirds of Michigan voters want Roe v. Wade to remain in place. In the same poll, carried out by WDIV and the Detroit News, more than 77% of Michiganders thought decisions should be left to women and their doctors, not sweeping laws. 

“Elections come into play in pretty much every aspect of life, so this notion of a right to an abortion, a right to privacy for women in Michigan is no different,” Gilchrist said. “Gretchen Whitmer being the governor of Michigan leads to this action being taken. If there’s a Republican governor, they’re not going to take this action.”

Elections in November of this year might still play a part in the future of abortion rights in Michigan. If Republicans win back the seat of governor or attorney general, they could choose to attack abortion rights, regardless of what the state Supreme Court decides. The seven members of the state Supreme Court are also elected.


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