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Michigan governor files lawsuit to protect abortion rights

With a ruling from the U.S. Supreme Court anticipated soon, the governor wants to address a Michigan law written in 1931 that would have sweeping changes on abortion access in the state if allowed to go back into effect.

LANSING, Mich. (CN) — Michigan Governor Gretchen Whitmer, a Democrat, is using her executive authority to confirm if the state’s Constitution will protect a woman's right to have an abortion if Roe v. Wade is struck down by a conservative-leaning U.S. Supreme Court.

Whitmer, up for reelection in the fall, filed a lawsuit in Oakland County in a preemptive strike that assumes the Supreme Court will eventually overturn Roe v. Wade. In 1931, the Michigan Legislature enacted a law that criminalized abortion without exceptions for rape or incest. The 1973 passage of Roe v. Wade rendered the law unconstitutional, but if the Supreme Court overturns that historic ruling, it would go back into effect.  

The lawsuit says the 1931 law would make abortion a felony, the death of a pregnant woman resulting from an abortion as manslaughter and removed a defense that two doctors could advise if the procedure was necessary to save the life of a woman.

“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” Whitmer said in a statement. “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. This is no longer theoretical: it is reality. That’s why I am filing a lawsuit and using my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion.”

In the complaint Whitmer names thirteen prosecuting attorneys in the Metro Detroit area as defendants and where abortion care is provided under their jurisdiction.  

The Detroit Free Press reported that seven of those attorneys have indicated they supported Whitmer’s effort to confirm the law protects the a woman’s right to have an abortion. 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.

The Michigan Supreme Court has four Democratic and three Republican justices.

The governor’s statement today claimed it was the first time a governor has filed a lawsuit to protect a woman's right to abortion since the U.S. Supreme Court grew more conservative with three appointments by former President Donald Trump.

The lawsuit asks the court to address if an abortion ban would violate the due process clause in Michigan’s Constitution, which provides a right to privacy and bodily autonomy.  The complaint also claims an abortion ban violates Michigan’s equal protection clause because the law was written at a time when the societal roles of women were much more conservative.

“However we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions. A woman must be able to make her own medical decisions with the advice of a healthcare professional she trusts — politicians shouldn’t make that decision for her,” Whitmer continued in her statement.

Right to Life of Michigan President Barbara Listing told the AP that the complaint was “frivolous."

Whitmer cited a recent poll taken by a local news station in January to say the issue is “beyond settled.”

In the poll, 77.2% of voters said abortion is something that should be left to a woman and her doctor,while 9.7% said it should be regulated by law. More than two-thirds of Michiganders support the Roe v. Wade decision and 65.7% support repealing the 1931 ban on abortion.    

The case triggering Whitmer’s action is about a Mississippi law that bans most abortions after 15 weeks in pregnancy. The case is in the U.S Supreme Court now with a ruling expected soon.  

Whitmer said in her statement she would not back down from something she views as monumentally important.

“No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan. If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in. We must trust women — our family, neighbors, and friends — to make decisions that are best for them about their bodies and lives.” 

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