Whitmer files suit to enshrine abortion rights, asks Mich. Supreme Court to take the case

Updated, 12:57 p.m. 4/7/22 with additional comments

Gov. Gretchen Whitmer filed a lawsuit Thursday with the Oakland County Circuit Court to preserve legal abortions in Michigan, as the future of the 1973 landmark decision in Roe v. Wade is at risk pending the U.S. Supreme Court’s decision in another major abortion access case.

“Nearly my whole life, this is a right that’s afforded women the freedom to live and enjoy full rights to privacy and autonomy and equality as American citizens. All of that is in jeopardy,” the Democratic governor said in a Wednesday afternoon interview with the Advance. “Regardless of why a woman might choose to exercise her rights in this regard, it is none of our business.”

The lawsuit seeks to recognize the right to an abortion under the state constitution, similarly to what the U.S. Supreme Court did in Roe v. Wade which declared abortion to be a constitutional right, and to strike down the state’s 1931 abortion ban law.

The Supreme Court, which is considered to have its most right-wing makeup in decades, heard arguments on a Mississippi law banning abortions after 15 weeks in December. Depending on how the court rules in the case, Dobbs v. Jackson Women’s Health Organization, which is expected by the end of the Court’s term in June, Roe v. Wade could be overturned. 

If that happens, the 1931 Michigan law criminalizing abortions in all instances unless it is to protect the life of the pregnant person, will go into effect. 

The state is arguing that the 1931 ban violates both Michigan’s due process clause, which provides a right to privacy and bodily autonomy, and  Michigan’s Equal Protection Clause.

Michigan has previously tried to repeal the 1931 abortion ban before, but it’s failed each time. Democrats rolled out the Michigan Reproductive Health Act (RHA) in 2019, which aimed to repeal the 1931 law, roll back abortion restrictions and increase access to abortion services and support. Whitmer supported the RHA, but the GOP-led Legislature refused to take it up.

The defendants named in this case brought on by Whitmer are county prosecutors for the 13 Michigan counties that have abortion clinics — Emmett, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw and Wayne counties.  

The governor will be represented by several attorneys from the Department of the Attorney General who have been placed behind a conflict wall. Additionally, attorneys from the Washington, D.C.-based law firm WilmerHale have offered their services pro bono.

Whitmer will use the executive message power asking the state Supreme Court to take on this case and do so swiftly. As part of the Michigan Court Rules, which are promulgated by the Michigan Supreme Court, that allows in cases of special importance for the governor to send an executive message to the state Supreme Court. 

Michigan’s Supreme Court currently has the first Democratic-nominated majority in more than a decade.

“The lawsuit is necessary and crucial, and it’s so important that the court moves swiftly because we have an imminent threat to constitutional rights that women have been able to exercise for 49 years,” Whitmer said. 

If the case is not taken up by the state Supreme Court, it could languish in the trial court and in the Court of Appeals for months. There is currently a 1997 decision on the books issued by the Court of Appeals saying that the state Constitution does not recognize the right to an abortion. Without a decision from the state Supreme Court, lower courts have their hands tied.

Right to Life of Michigan President Barb Listing said the group will “do everything we can to fight this lawsuit.”

“Right to Life of Michigan believes that the Michigan Supreme Court has the obligation to deny this request as it is deceitful and dishonest,” she said.

More states take action to restrict abortion 

This all comes during a time when more abortion restrictions have been rolled out nationwide than ever before. In 2021, for the first time ever, states enacted more than 100 abortion restrictions in a single year. 

Michigan’s GOP-led Legislature has had a long list of abortion restriction bills introduced. 

That includes a bill that would make it a crime to knowingly perform or induce an abortion on a woman who wants it because of the sex, race or a disability of the fetus and a bill that would require doctors to provide information on the abortion pill reversal procedure (APR), require abortion providers to check for a fetal heartbeat prior to providing an abortion and disclose the likelihood of a miscarriage.

In September, Whitmer called on the Legislature to repeal the 1931 abortion ban law, but Senate Majority Leader Mike Shirkey (R-Clarklake) said Senate Republicans “will not waiver from this fundamental duty to protect the sanctity of life.”

“Ensuring that we have a statute that supersedes the 1931 law would be an effective alternative, but the majority in the Legislature does not recognize women as full American citizens and does not recognize this constitutional right,” Whitmer said. “And so that solution is … not legal at the moment. … And this is an action that I can take using the unique powers of my office.”

Republican leaders in the state will likely try to intervene with this lawsuit, but Whitmer told the Advance she doesn’t have time to be concerned about that. 

“There probably will be an opportunity for them to weigh in, but frankly, I can’t not take action around this fundamental right on behalf of women, our families and providers in Michigan based on what [the Legislature] may or may not do,” she said.

In January, Reproductive Freedom for All formed to get a petition on the 2022 ballot protect reproductive freedom, including access to abortion, before voters in the November election. The coalition includes Planned Parenthood of Michigan, the ACLU of Michigan, Planned Parenthood Advocates of Michigan and Michigan Voices.

The proposal, if passed, would amend Michigan’s Constitution to explicitly affirm Michiganders’ right to make and carry out decisions relating to pregnancy, including abortion, birth control, prenatal care and childbirth.

But Michigan doesn’t have time to wait for that ballot initiative to possibly hit the ballot in November, Whitmer said. 

“An initiative of any sort would not take effect immediately, especially wouldn’t be an effect by the time Dobbs v. Jackson is decided,” Whitmer said. “And that’s why it’s important right now, with this Michigan Constitution, to get an interpretation from the court that determines that, in fact, it does recognize women’s right to privacy under due process and the ability to make our own decisions about our bodies.”

Whitmer is up for reelection in November. There are 12 Republicans running for the GOP nomination in the August primary, including chiropractor Garrett Soldano, right-wing commentator Tudor Dixon, former Detroit Police Chief James Craig, businessman Perry Johnson and businessman Kevin Rinke. All of the Republicans oppose abortion rights.

According to the governor’s office, Whitmer is the first governor to file a lawsuit in this context and use the executive message power to protect the right to abortion since the U.S. Supreme Court signaled its openness to overturning Roe.

She says she has been in discussion with governors from other states about “how important and how imperative and how precarious this moment is for women in America,” but not every state has the same tools Whitmer has in Michigan through the executive message power. 

“I’m using every tool that I have to ensure that we protect women and we empower women and we ensure that our constitutional rights aren’t undermined if you live in the state of Michigan,” Whitmer said.