Deep dive: What future of abortion in Michigan looks like if Roe is overturned

New Texas abortion law challenges national regulations

FILE - In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. The new poll from The Associated Press-NORC Center for Public Affairs Research finds 61% of Americans say abortion should be legal in most or all circumstances in the first trimester of a pregnancy. However, 65% said abortion should usually be illegal in the second trimester, and 80% said that about the third trimester. (AP Photo/Manuel Balce Ceneta) (Manuel Balce Ceneta, AP2005)

The right to abortions has been widely debated among Americans and lawmakers alike in recent years -- a debate that has nearly reached a boiling point today, given a new Texas law that could potentially impact national abortion regulations.

In 1973, the U.S. Supreme Court issued a landmark ruling in the court case known as Roe v. Wade, effectively protecting a woman’s right to have an abortion without excessive government restrictions. Prior to the high court’s ruling, abortions were solely regulated in each individual state through their own laws.

States have still been allowed to regulate abortions in certain ways while abiding by the decision in Roe.

Today, most states prohibit abortions after a certain stage in a pregnancy, though those rules vary widely by state. A new law in Texas sought to restrict that timeline even further, and it will remain in effect -- for now -- after the Supreme Court denied a request to freeze the law while it is under review.

Related: Report: Draft opinion suggests high court could overturn Roe

Given the new law in Texas, and another Supreme Court hearing on the subject anticipated this fall, lawmakers and residents across the U.S. are preparing for the possibility of change in the nation’s abortion laws.

In Michigan, Democratic lawmakers are concerned about what might happen if the high court overturns Roe v. Wade, as an old law on the books could prohibit abortions in the state.

So what does the future hold for abortions in Michigan and beyond? Let’s dive in.

Abortion and where states stand

In its simplest form, an abortion is a procedure through which a pregnant person terminates their pregnancy. There are two methods to induce an abortion, either through medication or a surgical abortion, and it is typically overseen and/or carried out by a medical professional.

Because of Roe, pregnant people across the nation have been allowed to receive an abortion. People get abortions for a myriad of reasons, sometimes because the pregnancy poses a threat to the pregnant person’s life or health, and sometimes because a person doesn’t want to be pregnant.

While the right to an abortion has been nationally recognized for decades, individual states still passed laws to regulate how, when and where abortions are allowed to be carried out.

A total of 43 states prohibit abortions after a certain point in a pregnancy, typically unless the pregnancy poses a health risk to the parent, according to the Guttmacher Institute. A full-term pregnancy lasts about 40 weeks and is broken down into trimesters: The first trimester is 0-13 weeks, the second is 14-26 weeks and the third is 27-40 weeks.

In 18 states, abortions are prohibited beyond 20 weeks gestation. Four states prohibit abortions after 24 weeks, and Virginia prohibits any abortions during the third trimester. Most states -- 20 of them -- prohibit abortions once a fetus reaches “viability,” meaning it would be able to survive outside of the womb. This particular timeline is not exact, but viability usually occurs around 24-28 weeks gestation.

In Michigan, most abortions are prohibited once a fetus reaches viability. The state currently has the following restrictions on abortion, as listed by the Guttmacher Institute:

  • A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided.
  • Private insurance policies cover abortion only in cases of life endangerment, unless individuals purchase an optional rider at an additional cost.
  • Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment, unless individuals purchase an optional rider at an additional cost.
  • Abortion is covered in insurance policies for public employees only in cases of life endangerment, unless individuals purchase an optional rider at an additional cost.
  • The parent of a minor must consent before an abortion is provided.
  • Public funding is available for abortion only in cases of life endangerment, rape or incest.
  • An abortion may be performed at or after viability only if the patient’s life is endangered.

According to the Guttmacher Institute, 38 states require an abortion to be performed by a licensed physician, some of which mandate that an abortion must be performed at a hospital after a certain point in the pregnancy. Many states also mandate counseling, waiting periods and parental involvement for people seeking to get an abortion. Click here to learn more about that.

According to the CDC, the number of abortions carried out in the U.S. reached a historic low in 2017 and decreased significantly between 2009 and 2018.

Several Republican-controlled states have pushed to shorten the timeline in which abortions are allowed, though no such legislation has taken effect.

Until now.

New Texas abortion law

A new law in Texas is one of many recently passed in Republican-controlled states seeking to more severely restrict, or prohibit, abortions. The laws in 12 other states -- Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee and Utah -- have all been blocked by courts and are not currently in effect.

But the new Texas law is designed differently, and has been allowed to take effect due to inaction by the Supreme Court.

Abortions in Texas are now prohibited once medical professionals can detect cardiac activity, which is usually at about 6 weeks gestation -- and before many people know that they are pregnant.

Other laws looking to restrict abortions sought to criminally prosecute medical providers who carried out the procedure. In Texas, rather than criminally prosecuting anyone, the new abortion law allows private citizens to sue medical providers for carrying out an abortion, as well as anyone who helps a person receiving an abortion -- excluding the abortion patient, who cannot be sued. Private residents who take up such civil lawsuits are entitled to at least $10,000 in damages if they prevail in court.

Read more: EXPLAINER: What to know about the new Texas abortion law

An appeals case is still pending in the 5th U.S. Court of Appeals, so the law’s future is uncertain. But the U.S. Supreme Court voted last week to deny an emergency appeal made by abortion providers, leaving the law in tact, at least for now.

Impact of new Texas abortion law

While the high court did leave the Texas law in place, the court did not technically rule on the constitutionality of the new law -- which means that the law could still be challenged. The court’s ruling was solely to deny a request to freeze the law, saying that those who brought the case had not met the high burden required for a stay of the law.

Republican lawmakers in like-minded states have already said they will consider mimicking the Texas law in their own states.

The new law in Texas is the most significant attack on the nation’s stance on abortions, which are considered a constitutional right for Americans under Roe. Experts say the Supreme Court’s decision to leave the law in place indicates that the conservative-majority court may, in fact, overturn Roe when hearing a case out of Mississippi this fall.

Mississippi lawmakers are pushing to ban most abortions beyond 15 weeks gestation, but legal battles have brought that law to the Supreme Court in a direct challenge to Roe v. Wade. Justices will essentially determine then whether to uphold Roe or to overturn it when hearing the case.

What happens if Roe v. Wade is overturned?

If Roe v. Wade is overturned, abortion will not become illegal for the entire United States. Rather, individual states will once again be in charge of regulating abortions in their states.

A number of states, like New York and New Jersey, have prepared and passed new laws protecting people’s right to an abortion, should Roe be overturned. But in other states, like here in Michigan, the future is a bit murkier.

Impact on Michigan

If Roe v. Wade is overturned by the Supreme Court, Michigan has a law on the books from the 1930s that would ban most abortions -- though it is unclear if that law would take effect immediately or not.

The Michigan law dates back to the 1800s, and was updated in 1931. Under that law, using an instrument or administering a substance with the intent to induce an abortion would be a felony, unless the procedure is necessary to preserve the pregnant person’s life.

Democrats have attempted to repeal the 1931 law, but that effort has been blocked by the state’s Republican-controlled Legislature. Michigan is one of eight states that has not repealed its ban on abortions from before the Roe v. Wade decision.

Last week, Democratic Michigan Gov. Gretchen Whitmer denounced the Supreme Court’s decision to leave the new Texas law in place, saying the law is a “gross infringement on reproductive rights and freedoms.”

Whitmer on Tuesday called on Michigan legislators to repeal the state’s 1931 law, and said that she will stand in the way of any state legislation seeking to prohibit women’s “fundamental rights.”

“Recently, Texas passed a new, extreme anti-choice law that puts people’s lives at risk, and threatens healthcare workers. The insidious law essentially bans abortions, even in cases of rape or incest, and allows strangers to sue medical professionals or anyone who helps women get the comprehensive healthcare they need. It is a gross violation of the constitutional right to choose, and the Court’s decision to allow it to stay in place sets the United States on a dangerous path towards overturning Roe v. Wade.

“Unfortunately, there are more cases based on equally extreme state laws awaiting action in the Supreme Court that would completely overturn Roe v. Wade. If the court’s decision in the Texas case is any indication, a majority of justices are willing to throw out the constitutional right to choose that has been in place for 48 years and repeatedly upheld for decades.

“In Michigan today, abortion is safe and legal, but we have an arcane law on the books from the 1930s banning abortion and criminalizing healthcare providers who offer comprehensive care and essential reproductive services. Thankfully, that dangerous, outdated law is superseded by Roe v. Wade, but, if the U.S. Supreme Court overturns Roe, that Michigan law and others like it may go back into effect in dozens of states, disproportionately impacting Black and brown communities.

“I call on the legislature to send Senator Erika Geiss’ bill that repeals our nearly-century-old ban on abortion to my desk. I have always stood with those fighting for their right to choose, and I will not stop now. I will stand in the way of any bills that seek to strip away fundamental rights from women or get in the way of doctors’ ability to do their jobs.”

Michigan Gov. Gretchen Whitmer

Whitmer isn’t the only one who has made her stance on abortion rights very well known. Michigan Attorney General Dana Nessel has previously said that she will not enforce Michigan’s abortion ban.

New Washtenaw County Prosecutor Eli Savit, who has pushed for progressive policies since taking office, tweeted last week that his office will not prosecute “any person for exercising reproductive freedom.”

It is believed to be unlikely that Republican Michigan legislators would agree to repeal the 1931 abortion ban, and it’s unclear what action Whitmer -- who is up for reelection -- may take if it stays on the books.

For those in Texas, U.S. Attorney General Merrick Garland said the Department of Justice would “protect those seeking to obtain or provide reproductive health services” under a federal law known as the Freedom of Access to Clinic Entrances Act. Federal officials are exploring options to challenge the new law in Texas amid the Supreme Court’s inaction.

Related: Judge shields some Texas abortion clinics from group’s suits

Still, it is uncertain what, if any, steps will be taken by federal or state lawmakers as the nation waits to see what the Supreme Court will do next.

Read more: Origin story of the Texas law that could upend Roe v. Wade

About the Author:

Cassidy Johncox is a senior digital news editor covering stories across the spectrum, with a special focus on politics and community issues.