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Michigan judge blocks enforcement of 1931 abortion ban if Roe is overturned

The Democratic governor is also asking the Michigan Supreme Court to recognize a constitutional right to an abortion under the state constitution’s due process clause.

LANSING, Mich. (CN) — A Michigan judge on Tuesday issued a preliminary injunction suspending enforcement of a state law from 1931 that would ban abortion, amid the build-up to a potential U.S. Supreme Court ruling that could wipe out the landmark Roe v. Wade decision.

Michigan Court of Claims Judge Elizabeth Gleicher granted the request from Planned Parenthood, finding merit in its claim that any ban on abortion is threat to a woman's constitutional right to bodily integrity and due process.

"Forced pregnancy, and the concomitant compulsion to endure the medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions," Gleicher wrote. When the judge was assigned the case, she disclosed she donated to Planned Parenthood of Michigan and had previously represented the group in court.

Governor Gretchen Whitmer, a Democrat, applauded the decision.

“Today marks an important victory for Michiganders,” she said in a statement. “The opinion from the Michigan Court of Claims is clear and sends the message that Michigan’s 1931 law banning abortion, even in cases of rape or incest, should not go into effect even if Roe is overturned. It will help ensure that Michigan remains a place where women have freedom and control over their own bodies.”

Whitmer cited a local news poll from January that she said supports her position. The poll conducted by WDIV-TV in Detroit found that 67 of Michiganders support the 1973 Roe ruling establishing a constitutional right to abortion, and 66% supported repealing the state's 1931 law. More than 77% said abortion should be a woman’s decision. Fifty-seven percent of independent voters strongly supported leaving Roe in place while only 9% of independents strongly supported overturning it.

The underlying lawsuit was filed by Planned Parenthood in April against Michigan Attorney General Dana Nessel, a Democrat who said she wouldn't defend the 1931 law. The group sought to confirm that the 91-year-old statute would not take effect if the Supreme Court strikes down the Roe decision that rendered it moot. The justices are expected to do so after the leak of a draft opinion two weeks ago.

Whitmer made clear she is ready for a protracted fight and is confident abortion rights supporters will come out on top.

“Our work is not over,” she said. “I want every Michigander to know: no matter what happens in D.C., I’m going to fight like hell to protect access to safe, legal abortion in Michigan. That’s why last month, I filed a lawsuit and used my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion once and for all.”

Whitmer said at the time her lawsuit was filed that it was the first time a governor has filed suit 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.

"While today’s preliminary injunction offers immediate, critical relief, we need the Michigan Supreme Court to weigh in and establish the right to abortion under our state constitution," she said Tuesday. "We must protect the rights of nearly 2.2 million women in Michigan to make decisions about their bodies because however we personally feel about abortion. A woman’s health, not politics, should drive important medical decisions.” 

Gleicher stressed in her order that it was about how women are allowed to care for their own bodies.

"Pregnancy implicates bodily integrity because even for the healthiest women it carries consequential medical risks...thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one," the judge wrote.

She added: "If a woman's right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth."

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