Michigan has a pre-Roe abortion ban on the books. Democratic Gov. Gretchen Whitmer is frantically trying to get it struck down.
- Michigan has a 1931 ban on the books that would make abortion illegal if Roe v. Wade is overturned.
- Democratic Gov. Gretchen Whitmer is frantically trying to get the law struck down.
Michigan's governor, attorney general, and two US senators are Democrats who support reproductive rights. The governor's mansion is held by a woman. And the state went blue in three of the last four presidential elections.
But if the Supreme Court overturns Roe v. Wade this summer, abortion could become illegal within the state's borders, with no exceptions for rape or incest.
Michigan's Democratic leaders are frantically trying to head off a 1931 abortion ban that was never repealed, even after the US Supreme Court's 1973 decision in Roe v. Wade negated it. If the protections of Roe disappear this year, Michigan's ban could come roaring back to life.
Michigan's quandary exemplifies how Democrats' hands are tied should the US Supreme Court vote to throw out almost 50 years of precedent and return to individual states the power to ban or allow abortions. A leaked draft of an opinion in the Dobbs v. Jackson Women's Health Organization case indicated that the court's conservative majority was ready to do so. The court could also issue a ruling that does not entirely do away with Roe v. Wade, but diminishes its scope and allows more restrictive state bans to move forward.
Repealing the law through the Michigan state legislature is an unlikely option, as Republicans control both chambers. So Democratic Gov. Gretchen Whitmer filed a lawsuit in April, arguing that the ban violates Michigan's state constitution, which guarantees a woman a right to an abortion. She has used her powers as governor to request the Michigan Supreme Court consider the suit immediately.
Planned Parenthood of Michigan also filed a lawsuit to have the ban thrown out.
The 1931 law "would make our state home to one of the most extreme anti-choice policies in the country once this decision from the court is officially released," Whitmer wrote in a New York Times op-ed on Monday.
"I hope that my novel lawsuit can offer a course of action for others to follow," Whitmer wrote. "I encourage my fellow pro-choice governors, state legislators, private sector leaders and citizens to use every available tool to protect access to safe, legal abortions."
Dana Nessel, Michigan's Democratic attorney general, said she wouldn't enforce the law if it went into effect. But she cautioned that local prosecutors would still have the power to prosecute people who sought or helped facilitate abortions.
"I don't think that I have the authority to tell the duly elected county prosecutors what they can and what they cannot charge," Nessel told reporters on May 3.
In Wisconsin, which also has an unenforced abortion ban on the books, Democratic Attorney General Josh Kaul said he, too, would not enforce the ban if Roe v. Wade was struck down.
Should the Supreme Court abolish Roe v. Wade, which guarantees a constitutional right to an abortion and prevents states from banning abortions before fetal viability (about 23 to 25 weeks of pregnancy), 13 states would automatically ban the procedure. As many as 26 states — including Michigan — could limit or outlaw access to the procedure if Roe is struck down.
The fight for abortion access may come down to state-by-state battles. And Republicans, whose elected officials broadly oppose abortion, have a significant advantage.
Republicans hold a trifecta — the governorship and both chambers of a state legislature — in 23 states. Democrats, on the other hand, have such control in 14 states.
States where Democrats control the governor's office and state legislatures are working to expand or guarantee abortion access. But Republican-controlled states, such as Texas, are exploring legal avenues to prevent women from leaving their state to have abortions, if the Supreme Court strikes down or diminishes Roe v. Wade.
In states where Democrats and Republicans share power, including Michigan and Wisconsin, the battles are likely to be even more convoluted and protracted as governors, state legislators, and the courts clash over abortion rules.
Efforts this week by congressional Democrats to enshrine the right to an abortion into federal law may go nowhere, as they cannot overcome a Republican filibuster in the Senate.
The US Supreme Court is expected to issue a ruling in Dobbs v. Women's Health Organization in May or June.