A Michigan judge Wednesday struck down a state abortion ban still on the books from 1931, finding that it violates the due process and equal protection clauses of the Michigan constitution.
“A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives — it denies them of their dignity,” Court of Claims Judge Elizabeth Gleicher writes. “Michigan’s constitution forbids this violation of due process.”
Gleicher temporarily blocked enforcement of the ban in May, as the litigation unfolded.
The decision will likely be appealed.
While writing on the relatively expansive protections of the Michigan constitution, Gleicher seemed to take a swipe at the historical rationale underpinning the Supreme Court’s Dobbs decision, which nullified the constitutional right to an abortion.
“In 1963, the people ratified a constitution for the twentieth century and beyond, expecting that their document would safeguard present and newly emerging liberties as our country continued its rapid transformation after the Second World War,” she writes of the Michigan state constitution. “In contrast, the Dobbs majority looked backwards, clinging to a version of history that started ‘in the earliest days of the common law.’”
In a stark contrast to Judge Samuel Alito’s majority decision in Dobbs, Gleicher spends pages on the ramifications to Michigan women, should the ban be allowed to stand.
She outlines the “landscape” in which she’s handing down the order: the ban has no exemptions for pregnancies from rape or incest, fetal abnormalities or potential damage to the women’s health, and is unconcerned about whether the woman has the means to support the child.
“As any woman who has experienced pregnancy and delivery knows, the process is utterly transformative of every bodily function,” she writes.
She also centers the woman who, statistically, is most likely to get an abortion in the United States: someone who’s already a mother.
“The law also controls her ability to be the mother she wants to be,” she writes. “The statute not only compels motherhood and its attendant responsibilities; it wipes away the mother’s ability to make the plans she considers most beneficial for the futures of her existing or desired children.”
While advocates for abortion rights will celebrate the victory, there’s likely a long legal path ahead to determine the fate of this particular ban.
Meanwhile, the Michigan Supreme Court is considering a ballot initiative that, if it passes, would enshrine the right to abortion in the state constitution. Republicans on the Michigan Board of State Canvassers rejected the ballot measure last week, deadlocking the four-person body. The court is expected to decide relatively quickly whether or not the measure can appear on the ballot for the November midterms.
Read the opinion here:
