Where Things Stand: Whitmer Preemptively Sues To Stop State’s 1930s Abortion Ban From Springing Back To Life Post-Roe

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LANSING, MI - JANUARY 25: Michigan Governor Gretchen Whitmer poses for a photo after an event at which General Motors announced they are making a $7 billion investment, the largest in the company's history, in electr... LANSING, MI - JANUARY 25: Michigan Governor Gretchen Whitmer poses for a photo after an event at which General Motors announced they are making a $7 billion investment, the largest in the company's history, in electric vehicle and battery production in the state of Michigan on January 25, 2022 in Lansing, Michigan. The investment will be used at 4 facilities in Michigan and will create 4,000 jobs. (Photo by Bill Pugliano/Getty Images) MORE LESS

April 7, 2022 6:34 p.m.

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If Roe v. Wade is overturned as conservative justices have signaled it might be this summer, abortion will become near-illegal almost instantly in 17 states.

As my colleague Kate Riga reported back in December, a large chunk of those states, including Michigan, have old laws on the books that were put in place before Roe gave people who can become pregnant the national right to an abortion. A few of those states have what’s referred to as a “trigger law” in place meant to be enacted as soon as Roe falls that would ban most or all abortions in the state. Some of those 17 states have both measures in place.

And that’s all in addition to the movement we’re seeing in red states around the U.S., where state lawmakers are either pushing to codify some of the most egregious components of Texas’ six-week abortion ban into their state laws or, like Oklahoma, passing legislation that would make the procedure illegal ahead of Roe’s expected weakening or outright demise.

But Michigan Gov. Gretchen Whitmer (D) is getting a head start, preemptively pushing to get her state’s 1930s-era abortion ban off the books before SCOTUS rules on Mississippi’s 15-week abortion ban this summer.

Whitmer filed a lawsuit today against 13 county prosecutors in Michigan whose counties have abortion clinics. The logic is, if Roe is overturned, those officials will have the authority to start charging anyone found in violation of Michigan’s 1931 law banning abortion, which is why Whitmer is targeting them with the lawsuit, the governor’s office said in a statement. At least seven of those 13 county officials signed onto a statement supporting Whitmer’s suit today, Michigan Live reported.

On top of the lawsuit, Whitmer also used her executive authority to ask the state Supreme Court to consider the right to an abortion under the state constitution and remove the 1931 law from the books.

Abortion is currently only legal in Michigan because of Roe. If it’s overturned, the old law would be enacted and Michigan would have one of the most restrictive abortion bans in the country. The 1931 law is actually about as extreme as the one headed to the governor’s desk in Oklahoma — performing an abortion at any stage in pregnancy is a felony under the 90-plus year old law, with no exceptions for rape or incest. Like Oklahoma, performing an abortion is only allowed if the pregnant person’s life is at risk.

“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,” Whitmer said in the statement. “This is no longer theoretical; it is reality.”

Whitmer also posted a thread of tweets announcing her suit this morning.

Today I’m filing a lawsuit to keep abortion legal in Michigan. With SCOTUS’ willingness to overturn Roe v Wade, I'm using my authority as governor to go directly to Michigan's Supreme Court to urge them to decide if abortion is constitutional. It’s bold but necessary. Here's why:
— Governor Gretchen Whitmer (@GovWhitmer) April 7, 2022

Whitmer’s suit challenges the state constitutionality of the law, arguing that it violates the state constitution’s “Due Process Clause,” which is designed to ensure bodily autonomy and privacy. Whitmer also argues in the suit that the old law is in violation of the Michigan constitution’s equal protection clause because the abortion ban “was adopted to reinforce antiquated notions of the proper role for women in society.”