The right to abortions has been widely debated among Americans and lawmakers alike for decades -- a debate that has essentially reached a boiling point today, given a new Texas law and forthcoming Supreme Court ruling that could 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.
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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 by state. A new law in Texas sought to restrict that timeline even further and it took effect in September, thought its future is currently uncertain amid several legal challenges.
Given the new law in Texas, and another Supreme Court hearing on the subject anticipated this winter, people 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 would prohibit abortions in the state.
So what does the future hold for abortions in Michigan and beyond? Let’s find out.
Legal status in Texas:
- Oct. 6 update: Judge orders Texas to suspend new law banning most abortions
- Oct. 8 update: US appeals court lets Texas resume ban on most abortions
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 legal 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, sometimes because someone doesn’t want to be pregnant and anything and everything in between.
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 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.
In recent years, several Republican-controlled states have pushed to shorten the timeline in which abortions are allowed, but no such legislation has taken effect.
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 was initially allowed to take effect due to inaction by the Supreme Court.
Under the new law, abortions in Texas would be 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. At about 6 weeks into a pregnancy, cardiac activity can be detected by ultrasound in cells within an embryo that will eventually become the heart. Medical experts claim that a heart does not start to form until a fetus is at least nine weeks old.
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 would allow 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 -- and they don’t even have to be from Texas to sue.
The law’s future is currently uncertain. The 5th U.S. Circuit Court of Appeals previously allowed the law to take effect, but on Oct. 6 the court ordered the state of Texas to suspend the law following a lawsuit filed by the Biden administration that sought to temporarily halt it. The law had been in effect since Sept. 1.
Other recently-filed lawsuits also moved to challenge the law.
A physician in Texas publicly declared in a Washington Post opinion article in September that he had performed an abortion after 6 weeks gestation -- which defies the state’s new law -- after the law took effect. In response, two civil lawsuits were filed against the physician -- but not because the attorneys are anti-abortion and disagree with the physician’s actions. Rather, one lawyer from Arkansas says he filed a lawsuit in an effort to challenge the Texas law, forcing the court system to review it. The other lawyer, from Illinois, says he sued to request that the court declare the law unconstitutional.
With the lawsuits, the courts have an opportunity to decide if the abortion law is reasonable and constitutional, a decision that could eventually make its way to the Texas Supreme Court.
While the U.S. Supreme Court did vote to leave the Texas law in place, the court did not technically rule on the constitutionality of the new law -- meaning the law could still be challenged, either through them or through lower courts. The high court’s ruling last month was solely to deny a request to freeze the law while it was being challenged in the federal court system.
Impact of new Texas abortion law
Republican lawmakers in like-minded states have already said they will consider mimicking the new Texas law in their own states.
The new law in Texas is considered the most significant attack on the nation’s stance on abortions, which are recognized as 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 in December.
Mississippi lawmakers are pushing to ban most abortions beyond 15 weeks gestation, which goes against Roe and a subsequent Supreme Court ruling in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. In that ruling, the high court affirmed and upheld Roe, while declaring that abortions are considered constitutional before a fetus becomes viable.
The new law in Mississippi, as well as those in other states, are essentially challenging Roe, which is why those laws have been blocked by courts. Those legal battles have brought the Mississippi law to the Supreme Court -- and today’s expert Barbara McQuade says the hearing is a direct challenge to Roe v. Wade.
“Because the (Supreme) Court takes only about 80 cases per year in cases that pose significant legal questions, and it takes four justices to agree to take a case, the mere fact that the Court accepted this case suggests that at least four justices think that this is an open question,” said McQuade, former U.S. Attorney for the Eastern District of Michigan.
“In light of the conservative views of six justices, there was already concern that the Court would overturn Roe. The recent case in Texas exacerbates this concern because five justices voted against stopping its six-week ban from taking effect even though it directly violates Roe, though its decision was based on procedural grounds and did not address the merits,” McQuade added. “Chief Justice John Roberts seems to be a stronger supporter of following precedent, even where he may disagree with a case’s holding, but with five votes to overturn Roe, his vote would be irrelevant.”
In short: Justices are expected to determine whether to uphold Roe or to overturn it when hearing the Mississippi case. Calling Roe’s precedent into question is concerning to some: Justices are supposed to stand by their decisions, with “only rare exceptions,” McQuade said.
“Justices are not supposed to substitute their personal opinions for the law,” McQuade said. “Precedents should be overturned only under certain circumstances: where the ruling has proved unworkable in practice, where the law has developed around the ruling in a way that is inconsistent with it, where people have not relied on the decision, or where we have a new understanding about the facts and law at issue in the ruling.
“None of those factors would suggest a basis to overrule Roe,” McQuade continued. “However, in recent years, some of the current justices have shown a greater willingness to overturn precedent. Justice Thomas, for example, has said that he believes a precedent should be overturned if it was ‘demonstrably wrong.’”
What happens if Roe v. Wade is overturned?
If Roe v. Wade is overturned, abortion will not automatically become illegal across the entire United States. Rather, individual states will once again be in charge of regulating abortions and abortion access 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.
And, contrary to popular belief, laws restricting or prohibiting abortion won’t necessarily stop them from taking place -- they’ll still occur, just not safely, according to McQuade.
“... of course, outlawing abortion in Michigan will not end it,” McQuade said. “Instead, people with adequate resources will travel out of state for abortions. Those without resources will look for back alley abortion providers to end unwanted pregnancies, which creates health risks and fosters organized criminal activity.”
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.
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.
That law is considered active -- meaning, it is currently in effect. The only reason it is not being enforced is because the law is superseded by the Supreme Court’s decision in Roe.
“(Michigan’s law) has been unenforceable since Roe, but if the Supreme Court were to overturn Roe, a state prosecutor could charge anyone who violates it immediately without any further action from our legislative or executive branches,” McQuade said. “Such enforcement would be subject to any limitations the (Supreme) Court preserves, such as permitting abortions before the fetus reaches a certain stage of development, such as 15 weeks or 6 weeks.”
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 that existed before the Roe v. Wade decision.
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.”
Last month, Whitmer 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,” Michigan Gov. Gretchen Whitmer said in a statement.
“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.”
Other elected officials respond
Whitmer isn’t the only one who has made her stance on abortion rights 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 month that his office will not prosecute “any person for exercising reproductive freedom.”
Individual prosecutors in Michigan are allowed to decide if they will enforce the 1931 law, should Roe get overturned, McQuade says.
“... prosecutors are permitted to exercise discretion in deciding how to use their limited resources in selecting cases that they will enforce,” McQuade said. “But even if AG Nessel refuses to enforce it, each county has its own prosecuting attorney who could enforce the law against abortion providers in their jurisdictions.”
In what McQuade calls a “chilling effect,” abortion providers in counties where prosecutors say they will will not enforce the state’s abortion law may still be deterred from offering such services. Because the statute of limitations for most crimes in Michigan is between six to 10 years, providers “must worry about how a prosecutor’s successor will exercise discretion,” McQuade said.
It is believed to be unlikely that Republican Michigan legislators will agree to repeal the 1931 abortion ban, and Whitmer -- who is up for reelection next year -- can’t take any sole action to overrule the law.
McQuade says Michigan voters who want to protect abortion rights and access could start a ballot initiative, which would put the issue on a ballot for all voters in the state.
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 were exploring options to challenge the new law in Texas following the Supreme Court’s inaction.
On Sept. 24, the U.S. House passed legislation that would guarantee a woman’s right to an abortion under federal law, codifying the Roe ruling. The initiative is thought to be mostly symbolic, however, as the legislation has essentially no hope against Republican opposition in the Senate.
On Wednesday, Oct. 6, a federal judge with the 5th U.S. Circuit Court of Appeals ordered Texas to suspend the abortion law, calling it an “offensive deprivation” of a constitutional right. Officials say abortion services in Texas may not resume right away, however, even with the law suspended, as doctors still fear they can be sued without a more permanent legal decision.
Texas lawmakers say they will quickly seek a reversal from the court to allow the abortion law to take effect.
Though action is being taken on both sides of the aisle, everyone is really waiting for one thing: to see what the Supreme Court does next.
This article first appeared in the For Our Future Newsletter, a monthly newsletter that dissects national issues with a local focus and examines solutions. Sign up for it right here, or by using the form:
A less comprehensive version of this article was published in September.