Leaked SCOTUS opinion: A look at the future of abortion in Michigan if Roe is overturned

Draft of Supreme Court opinion leaked, suggesting Roe v. Wade will soon be overturned

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 that the U.S. Supreme Court is expected to decide this summer whether to overturn a landmark 1973 abortion ruling. Read: https://www.clickondetroit.com/news/michigan/2022/05/03/leaked-scotus-opinion-what-future-of-abortion-would-look-like-in-michigan-if-roe-is-overturned/

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 that the U.S. Supreme Court is expected to decide this summer whether to overturn a landmark 1973 abortion ruling.

In 1973, the U.S. Supreme Court issued a ruling in the court case known as Roe v. Wade, effectively protecting the 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. Some Republican controlled states have sought to restrict that timeline even further, or eliminate the right to an abortion altogether, but those laws have not taken effect, as they are superseded by the Roe ruling.

However, the high court is hearing a case out of Mississippi that seeks to restrict the timeline for which someone can get an abortion. The Supreme Court is expected to issue a ruling this summer.

A draft of the court’s ruling on the case was leaked on Monday, May 2, by Politico. The leaked report, of which the content was confirmed by Chief Justice John Roberts on Tuesday, states that the court will overturn Roe completely.

Not restrict the timeline for an abortion, but remove the right altogether.

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

Given the conservative majority on the high court, lawmakers and residents across the U.S. have been 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.

Experts say that pregnancy often goes unnoticed or undetected until after six weeks into the pregnancy.

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.

However, a 2021 law out of Texas circumvented restrictions outlined in Roe v. Wade in an effort to prohibit abortions in the state. This law leaves enforcement to private citizens who can sue doctors or anyone who helps a woman get an abortion, instead of prosecuting the person who receives an abortion.

The law bans abortions in the state for people who are as early as six weeks pregnant, making Texas the state with the most restrictive abortion laws. The Supreme Court has allowed the law to stay in tact for now, as the public awaits a decision from the high court on Roe.

While the Supreme Court did leave the Texas law in place, it did not technically rule on the constitutionality of the new law -- which means that the law could still be challenged ... unless Roe v. Wade is overturned.

Read more: Texas abortion ban stays in force as justices mull outcome

Supreme Court hears Mississippi case

Laws seeking to restrict abortions have been blocked by courts in several Republican controlled states, including: Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee and Utah.

In Mississippi, lawmakers are pushing to ban most abortions beyond 15 weeks gestation. This is the case being heard by the U.S. Supreme Court.

“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 Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan.

In an interview last fall, McQuade said that there was already a concern that the Supreme Court would overturn the ruling in Roe, especially due to the conservative views of six justices. Chief Justice John Roberts appears to be a stronger supporter of following the precedent set by the court, McQuade said, 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 said. “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 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.

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 a handful of states that has not repealed its ban on abortions from before the Roe v. Wade decision.

In April, Michigan Gov. Gretchen Whitmer filed a lawsuit in an effort to get the Michigan Supreme Court to overturn the 1931 law and to acknowledge the right to an abortion under the state constitution. A similar lawsuit was filed the same day by Planned Parenthood of Michigan and the ACLU.

Last year, Democratic Gov. Whitmer said Texas’ abortion restrictions are a “gross infringement on reproductive rights and freedoms,” and that she will stand in the way of any Michigan legislation seeking to prohibit women’s “fundamental rights.”

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 1931 ban.

In light of the potential overturning of Roe, a number of county prosecutors in Michigan, including Washtenaw County Prosecutor Eli Savit and Oakland County Prosecutor Karen McDonald, have vowed not to prosecute abortion.

Republican Michigan legislators have not agreed or made an effort to repeal the state’s 1931 abortion ban.

Lawsuits filed to secure abortion rights in Michigan

On Thursday, April 7, both Michigan Gov. Gretchen Whitmer and Planned Parenthood of Michigan filed lawsuits calling on the courts to recognize abortion as a human right under the state’s constitution, and to block the enforcement of the state’s 1931 abortion ban.

Gov. Whitmer’s lawsuit

Last month, the Michigan governor announced that she is directly asking the Michigan Supreme Court to acknowledge the right to an abortion under the state constitution, and to overturn the state’s 1931 law banning most abortions in a new lawsuit.

Democrats have previously attempted to repeal Michigan’s 1931 law, but that effort has been blocked by the state’s Republican-controlled Legislature. Democratic Gov. Whitmer called on the Michigan Legislature in 2021 to repeal the law, but no action has been taken to do so.

The lawsuit brought on April 7 argues that the 1931 law is invalid under the due process and equal protection clauses of the state constitution.

Whitmer is hoping that the state’s high court will review the lawsuit sooner, rather than have it move through the lower courts first.

On May 2, following reports of the leaked Supreme Court opinion, Whitmer tweeted, “Our work is more important than ever. I’ll fight like hell to protect abortion access in Michigan.”

Planned Parenthood/ACLU lawsuit

Planned Parenthood of Michigan and Michigan abortion provider Dr. Sarah Wallet on April 7 filed a lawsuit in hopes of preventing the 1931 law from being enforced. The lawsuit specifically seeks an immediate court order restraining Michigan Attorney General Dana Nessel from “enforcing the unconstitutional ban against abortion providers,” the press release said.

The lawsuit, backed by the ACLU, argues that Michigan’s abortion ban from 1931 “violates the rights to liberty, bodily integrity, equal protection, and privacy under the Michigan Constitution and state civil rights laws, and that the law is unconstitutionally vague.”

“I’m an abortion provider, and the care my colleagues and I provide every day to our patients is essential to their ability to lead the lives they choose,” Dr. Wallet said. “I joined this suit because it is fundamental to my oath as a physician to do no harm -- and being forced to deny abortion care and violating the basic rights of my patients would cause them immense, irreversible harm. Michiganders deserve to know that the health care they have relied on for 50 years will be there when they need it, no matter what.”

We're sitting down with Barbara McQuade, the former United States Attorney for the Eastern District of Michigan, to learn more about what the implications are for overturning Roe v. Wade, in Michigan and the U.S.

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.