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Whitmer sues to reverse Michigan's dormant abortion law

Head and shoulders portrait of Gov. Whitmer speaking at a microphone. She is wearing a grey houndstooth-plaid jacket.
Carlos Osorio/AP
Michigan Gov. Gretchen Whitmer addresses business leaders, on Dec. 20, 2021, in Detroit.

Before Roe v. Wade, Michigan had some of the nation’s most sweeping abortion restrictions.

Governor Gretchen Whitmer filed a lawsuit Thursday challenging Michigan’s dormant ban on abortion. The 91-year-old law was overruled by the 1973 Roe versus Wade U-S Supreme Court ruling. But that would change if the court strikes down the landmark decision.

Whitmer’s legal challenge says that, no matter what the US Supreme Court decides, the state’s abortion ban is not valid under the Michigan Constitution. Whitmer says that like the Roe versus Wade ruling, the Michigan Constitution has similar guarantees of due process and privacy for women and their health care providers.

“And it’s critical that we successfully argue this case to ensure that if Roe gets overturned women facing difficult personal choices will still be able to get the care that we need and the care that we have counted on for 49 years in this state,” she told the Michigan Public Radio Network.

Prior to Roe v. Wade, in Michigan, terminating a pregnancy was illegal except to save the life of a pregnant woman. The defendants in the case are prosecutors in 13 counties with medical clinics that perform abortions. The lawsuit seeks to bar them from enforcing Michigan’s abortion ban.

The governor also asked the Michigan Supreme Court to bypass lower courts and put the case directly on its docket. “We know that there is a determination coming from the United States Supreme Court in a matter of weeks, perhaps,” she said, “and that’s why right now it’s crucial that the court acts swiftly and take this case.”

The process here is complex. But, in short, the governor is asking for a preemptive ruling so there’s no interruption in abortion services in Michigan if Roe is struck down. The effort to act preemptively is good news to abortion rights advocates.

“As an abortion provider in Michigan, I think this is the important question – Will I be forced to tell people that I cannot provide care just because it has now, potentially overnight, become illegal,” said Sarah Wallett, the chief medical officer for Planned Parenthood of Michigan. Planned Parenthood has filed its own separate legal challenge in the Michigan Court of Claims. Abortion rights opponents say they expect these legal efforts to fail because the Legislature has voted to limit abortion to the limits allowed by Roe versus Wade and ballot campaigns have also succeeded multiple times in Michigan limiting abortion rights.

“We have a very, very firm legislative and legal foundation protecting the rights of the unborn child in Michigan and it’s only because of the federal constitutional rights in Roe versus Wade that we have to allow abortion in our state,” said Genevieve Marnon with Right to Life of Michigan.

Adding to the day’s drama, Democratic Attorney General Dana Nessel dropped a surprise. She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

"Everyone is confused why the attorney general would choose not to do her job,” responded House Speaker Jason Wentworth. “And, just like everyone else, we are still reviewing that decision and the new suit with legal counsel."

But the possibility of Republicans joining the lawsuit appears likely. GOP leaders have pointedly ignored Governor Whitmer’s call for the Legislature to repeal the state’s abortion ban in case Roe v. Wade is overturned.