Whitmer fights back against lawsuit targeting reproductive rights in Michigan

A federal lawsuit filed by an anti-abortion group aims to peel back the constitutional right to reproductive health care in Michigan. This week, Gov. Gretchen Whitmer is fighting back.

MICHIGAN—A motion filed this week in federal court by Gov. Gretchen Whitmer aims to protect the constitutional right to reproductive freedom in Michigan, which was approved by 2.5 million voters in 2022 and has since been challenged in a lawsuit from a right-wing, anti-abortion group.

“We must stay vigilant amid a rising tide of bills and lawsuits at the state and federal level seeking to roll back the hard-fought progress we have made here in Michigan,” Whitmer said in a statement this week. “Women must be able to make private health care decisions that are best for them without interference from politicians. Together, we will protect our freedoms.” 

Here’s the deal:

A lawsuit filed in federal court last year by the anti-abortion group Right to Life (and three Republican state lawmakers) aims to overturn the will of millions of Michiganders who voted to enshrine the constitutional right to reproductive health care into the state Constitution in 2022.

The lawsuit essentially argues that the ballot language approved by voters creates so many new constitutional rights that it conflicts with the First and Fourteenth amendments of the US Constitution, as well as the ability for lawmakers to tinker with reproductive rights in the future.

Among other things, the suit argues that the state constitutional amendment infringes on religious freedom guaranteed by the First Amendment, and that “children in the womb” have “an interest in life” that should be protected by 14th Amendment, which bars states from depriving any person of “life, liberty or property” without due process of law, reports Bridge Michigan.

Essentially, Right to Life is asking a judge to declare the amendment to be unconstitutional. 

Who’s suing who?

The plaintiffs include three other anti-abortion groups in addition to Right to Life, as well as state Sen. Joe Bellino (R-Monroe), state Reps. Gina Johnsen (R-Lake Odessa) and Luke Meerman (R-Coopersville), and “Jane Roe,” a fictitious name to represent “preborn babies.” Whitmer, Attorney General Dana Nessel, and Secretary of State Jocelyn Benson are the defendants. 

What’s at stake?

If the lawsuit is successful, a judge could step in and order a permanent injunction to overturn Proposal 3—which passed with about 57% of the vote and effectively ensures that nobody will ever be criminally prosecuted for providing or receiving reproductive health care in Michigan.

Whitmer and reproductive rights advocates maintain that such a ruling wouldn’t just carry implications for abortion access, but would also prevent women from being able to access assisted reproduction (like in-vitro fertilization or IVF), contraception, prenatal care, and more.

“This lawsuit threatens protections for abortion, contraception, and IVF, which millions of Americans use to start a family every year,” Whitmer said in a statement this week. 

What is Whitmer doing about it?

Whitmer’s recent motion asks the court to dismiss the lawsuit from Right to Life altogether, with Nessel arguing that the plaintiffs lacked the legal standing to even file their complaint in the first place. It’s at least the second such motion the state has filed in the case so far this year. 

In a statement last year, Whitmer’s press secretary Stacey LaRouche told the Detroit News that “right-wing organizations and radical Republicans” are only “cherry picking courts to try to once again overturn a constitutionally guaranteed right because they can’t win with voters.”

This week, Nessel billed the suit as an “overtly political attack” on the state Constitution. And in a statement, Benson also said the lawsuit is about far more than just reproductive healthcare.

“It’s trying to revoke Michigan voters’ right to amend our constitution through ballot initiatives when elected representatives are unable or unwilling to uphold the will of the people,” she said. “This isn’t just about overturning reproductive freedom … It’s about protecting voters’ rights.”

How did we get here?

Despite Republican-led efforts to spread misinformation about Proposal 3, Michigan voters turned out in full force in November 2022 to approve the ballot initiative and cement the right to reproductive freedom—including abortion care—into the state Constitution. 

That also includes the right to make and carry out any and all pregnancy-related decisions (including IVF) and it bars the state from enacting any laws or regulations that would infringe upon those basic human rights without a “compelling state interest in the health” of the patient.

Democrats in the state legislature have also taken that further by repealing a nearly 100-year-old state law that had criminalized abortion care in Michigan, as well as other restrictions on abortion providers. 

Since then, however, the right-wing attacks on reproductive freedom have only persisted.

Republican-led efforts to restrict abortion across the country resulted in a controversial ruling at the Alabama Supreme Court last month that led to IVF services being halted at several clinics in Alabama. The state’s government has since passed a law to protect IVF patients and providers from criminal liability, but the decision has left many across the country—including in Michigan— fearing that fertility treatments could be the next target of the anti-abortion movement.

There have been bills introduced in over a dozen states (and at the federal level) that would effectively have the same IVF-banning consequences as the Alabama ruling. Another pending case in the US Supreme Court could restrict medication abortion access. And ex-President Donald Trump has voiced plans to pursue a nationwide abortion ban if elected to another term.

As a result, reproductive rights advocates are warning that Michiganders shouldn’t get too complacent about their new constitutional rights to abortion—because many reproductive freedoms will still be decided in the courts, as well as in this year’s presidential election.

What happens now?

The plaintiffs will have a chance to respond to the recent motion to dismiss—at which point, the court will determine the next steps in the case, including the possibility of dismissing it outright.

“Right to Life’s lawsuit is making the same argument that led to the recent ruling in Alabama—where abortion is banned—which led IVF providers to stop operating in the state,” Whitmer said in a statement. “They filed this case in federal court, asking a federal judge appointed by President George W. Bush, to overrule the will of the people of Michigan.”

She added: “That’s unacceptable.”

READ MORE: Dems pass surrogacy and IVF protection bills amid right-wing attacks

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