Despite mixed messages from health care providers and two county prosecutors, abortions are still legal in Michigan.
Need to Know
- A 1931 law makes it a felony for physicians to perform abortions in Michigan—unless they’re done to save the life of a pregnant person.
- A judge’s order prevents law enforcement officials in all 83 counties in Michigan from enforcing that state law while litigation over the nearly 100-year-old abortion ban makes its way to the state Supreme Court.
- Misinformation over the legality of abortion in Michigan is spreading across the state. Rogue county prosecutors and the state’s largest healthcare provider have added to the confusion.
- Gov. Gretchen Whitmer has asked the Supreme Court to “immediately” consider a lawsuit that will decide whether or not the state Constitution protects abortions. That litigation could likely decide the long-term future of abortion access in Michigan.
MICHIGAN—Amid confusion over the legality of abortions in Michigan, Gov. Gretchen Whitmer has asked the state Supreme Court to “immediately” consider a pending lawsuit and give the state a definitive ruling on whether the right to abortion is protected under the state Constitution.
“Right now, abortion remains safe and legal in Michigan because of a court order temporarily blocking enforcement of the state’s 1931 abortion ban,” Whitmer said in a release. “But in the wake of the decision in Dobbs overturning Roe, certain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan. This only underscores the need for the Michigan Supreme Court to act now, which is why I sent a notice to the court urging them to immediately take up my lawsuit and decide if access to abortion is protected under the Michigan Constitution.”
The current version of Michigan’s law, which criminalizes abortion without exceptions for rape or incest, was enacted in 1931. In 1973, the passage of Roe v. Wade rendered Michigan’s 1931 ban unconstitutional, and abortion became legal in the state of Michigan.
Although last week’s US Supreme Court decision erased those federal protections, the old abortion ban in Michigan has been temporarily rendered unenforceable under an injunction that was issued in May, following a lawsuit from Planned Parenthood.
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In separate litigation, Gov. Whitmer has also asked the Supreme Court to recognize a constitutional right to an abortion under the due process clause of the Michigan Constitution. It further asks the court to strike the dated 1931 abortion ban.
The argument: Banning abortion violates the state’s due process clause, which provides a right to privacy and bodily autonomy. The 1931 near-total abortion ban also violates the equal protection clause because it denies women the same rights as men. In a release, Whitmer said the ban only reinforces “antiquated notions of the proper role for women.”
Whitmer added: “Getting this done will put an end to any confusion and ensure that Michiganders, health providers, and prosecutors understand the law.”
Confusion Is Spreading
The litigation to decide the constitutionality of abortions in Michigan, at least for now, remains at a standstill while a judge reportedly sorts out questions over jurisdiction. But in a briefing filed Monday, Whitmer argued that urgent action is necessary—namely because of “uncertainty” and “confusion,” including mixed messages from the state’s largest healthcare provider and rogue county prosecutors.
Shortly after Friday’s ruling on Roe, Tina Freese Decker, the president and CEO of Beaumont Health and Spectrum Health incorrectly advised hospital employees that the 1931 abortion ban “is now in effect.” In a memorandum, she also announced that abortions would only be performed when necessary to “preserve the life of the woman.”
The next day, the hospital system reversed course, citing “uncertainties and confusion surrounding” the potential enforcement of the abortion ban, according to records. Like Whitmer, hospital officials have also since urged the courts to make a ruling on the ban and clarify whether abortions can continue as usual under the state Constitution.
Prosecutors “Not Bound by the Court of Claims”
Whitmer’s recent briefing also calls out misleading statements from at least two county prosecutors who have wrongly insisted that they have a right to enforce the abortion ban.
Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker reportedly both believe they are not bound by the Court of Claims injunction and, through their lawyers, have argued they can still enforce the abortion ban at their own discretion, court records state.
Whitmer, a former Ingham County Prosecutor, said she “firmly disagrees” with their positions and insists they are both explicitly banned under the court order from pursuing criminal charges tied to abortions. Attorney General Dana Nessel—along with a cohort of several other prosecutors—have vowed not to enforce the 1931 law.
Polling shows that at least 67.3% of Michiganders support Roe and 65.7% support repealing Michigan’s 1931 trigger ban on abortion. Over 77% believe abortion should be a woman’s decision. Most Michiganders also agree that abortion is a decision to for a woman to make in consultation with a medical professional.
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