Whitmer asks state Supreme Court to strike down Michigan's 91-year-old abortion ban

With the U.S. Supreme Court poised to overrule or weaken Roe v. Wade before its current term ends, Gov. Gretchen Whitmer is asking the Michigan Supreme Court to rule that a 1931 law criminalizing abortion violates the state constitution.

If the state Supreme Court rules in Whitmer's favor, abortion would remain legal regardless of how the U.S. Supreme Court rules. 

There are 2.2 million women of childbearing age in Michigan, Whitmer told the Free Press on Wednesday, and those women deserve to know that their rights will be protected. 

"A woman must be able to make her own health care decisions, with the advice of a health care professional that she trusts. A politician shouldn't be making these decisions for her," Whitmer said in an exclusive interview. "And, frankly, if we fail to act, and abortion becomes illegal in our state for virtually any reason — including cases of rape and incest — we will have one of the most extreme laws in the country. It's critical that we push forward." 

More:Whitmer moves to protect Michigan abortion rights: 10 questions

More:Whitmer garners fierce criticism, ardent praise for abortion lawsuit

Michigan's 1931 abortion law has never been repealed. But Michigan Supreme Court justices ruled that the law was unenforceable in 1973 after the U.S. Supreme Court found that state bans on abortion violated the U.S. Constitution.

The federal Supreme Court's conservative majority is widely expected to abandon or eviscerate that landmark ruling in a case brought after the state of Mississippi enacted a law barring abortion after 15 weeks. If the high court rules that Mississippi's ban is constitutional, performing or undergoing an abortion in Michigan may once again become a felony. 

Seeking guidance for prosecutors

State Attorney General Dana Nessel has said she will not prosecute physicians for providing abortions or women for seeking them. But all three of the Republican candidates vying to replace her this fall are opposed to abortion, and abortion providers across Michigan say they'll close shop if the high court overturns Roe. County prosecutors can also bring charges, and the stakes are too high.  

Whitmer's suit, filed Thursday in Oakland County Circuit Court, asks the Michigan Supreme Court to declare the 1931 law contrary to the state constitution and enjoin prosecutors in the 13 Michigan counties that have abortion clinics from enforcing the law.

Prosecutors in seven of those counties issued a statement supporting Whitmer's lawsuit and affirming a woman's right to choose: Karen McDonald of Oakland County, Kym Worthy of Wayne, Carol Sieman of Ingham, Matthew Wiese of Marquette, Eli Savit of Washtenaw, Jeffrey Getting of Kalamazoo and David Leyton of Genesee.

A right to bodily integrity

The argument that Michigan's ban violates the state constitution is similar to the one abortion rights advocates made to the U.S. Supreme Court — namely that all state bans violate the federal Constitution's guarantees of due process and privacy. 

But Whitmer's lawyers argue that Michigan's state constitution also protects a right to bodily integrity, strengthening their assertion that the 1931 ban violates state law.

"There are two fundamental arguments here — around due process, privacy and bodily autonomy, and under the equal protection clause," Whitmer told the Free Press. The 1931 law, she said, is "based on paternalistic justifications that have made Michigan women second-class citizens."

The governor says the looming threat to Roe, in conjunction with other court rulings that have limited access to abortion, means there is sufficient uncertainty about exactly how abortion law is implemented in Michigan for the state Supreme Court to rule. 

Whitmer said a state Supreme Court ruling that Michigan's constitution precludes an abortion ban, would give prosecutors, providers and patients the clarity they need.

Whitmer, who is running for reelection this year, has campaigned mostly on what she calls dinner-table issues like repairing the roads or improving schools.

But she said abortion enjoys the same broad support. 

"It is polarizing in some camps. But this is overwhelmingly supported by the majority of people in Michigan" — seven in 10, Whitmer said, referencing a recent poll — "and regardless of how we personally feel about abortion, a woman's health, not politics should drive important medical decisions. ... With the dynamics on the Supreme Court, this is not a remote possibility. It's become very clear that this is highly likely to happen. We have been investigating and strategizing about how we protect this right for women in Michigan," Whitmer said.

In a related initiative coordinated with the governor's office, Planned Parenthood of Michigan also filed suit on Thursday, asking the Michigan Court of Claims to block Attorney General Dana Nessel — who has said she will not prosecute women or qualified doctors involved in abortion — and county prosecutors from enforcing the 1931 law, and to affirm a right to abortion in Michigan's constitution. 

Thursday, Nessel said that she would not defend the state in the Planned Parenthood lawsuit. 

"I will take no part in driving women into the dark ages and into back allies," Nessel said.

The attorney general says she expects the Legislature to intervene to provide legal defense for the state.

The governor has asked the Legislature to pass a law protecting Michigan women's right to choose, but in a briefing with reporters Wednesday, she conceded the GOP-controlled body is unlikely to act. 

"We're using every tool available — and this is a unique set of tools — to protect women, and protect our constitutional right to bodily autonomy, to make our own determination and protect our economic freedoms, as well," she said.

Whitmer's lawsuit invokes a little-known gubernatorial power, called "executive message," to ask the Michigan Supreme Court to take up her case directly, circumventing the trial court and the state Court of Appeals, and to expedite a ruling. 

Seeking certainty to advise patients

Dr. Sarah Wallett, chief medical officer of Planned Parenthood of Michigan, said that planning for the Supreme Court's decision challenges her ability to provide care for her patients. 

"People come to see me for all sorts of different reasons, and I can tell you that every single one of them has thought about their options," Wallett said. "... On any given day, I could see a patient who's a parent of several children who's decided that financially, having another one isn't the right thing to do. I might see a patient who has a medical problem that continuing a pregnancy would put her health at risk. I may see a patient that has been diagnosed that something is wrong with her pregnancy, and they've decided to not continue. I see teens who come in with their moms. I see patients come in with their partners. I see people who want to say words of faith before their procedure. Everybody is impacted by abortion."

The governor has noted that childbearing entails economic challenges. She said many women who terminate a pregnancy already have children, and fear they can't provide for a growing family. 

"I think it's important that we're very honest in this conversation. Proponents who claim that they're focused on something else, it's very clear that the conversation is all about controlling women's bodies," she said. "When you look at this antiquated law that is on our books, it was written 91 years ago, it was paternalistic in nature, intended to keep women at home, to take women's ability to make their own choices away.

"This is a really heavy moment, one that women (of a previous generation) never imagined that we would be here, fighting so hard to just protect our rights as full American citizens."

Contact Nancy Kaffer: nkaffer@freepress.com. Become a subscriber at Freep.com.