Michigan court blocks enforcement of state’s 1931 abortion ban if Roe is overturned

Judge approves request to ban state attorney general from enforcing Michigan abortion ban

Abortion rights demonstrators attend a rally at the Texas Capitol, Saturday, May 14, 2022, in Austin, Texas. Demonstrators are rallying from coast to coast in the face of an anticipated Supreme Court decision that could overturn womens right to an abortion. More (AP Photo/Eric Gay) (Eric Gay, Copyright 2022 The Associated Press. All rights reserved)

LANSING, Mich. – Enforcement of Michigan’s nearly century-old law banning abortions has been blocked by the state’s Court of Claims Tuesday, siding with a lawsuit that claims the ban is “unconstitutional.”

A Michigan Court of Claims judge on Tuesday, May 17, granted a motion filed by Planned Parenthood of Michigan and the ACLU, effectively preventing the state’s attorney general from enforcing a 1931 law that bans most abortions in Michigan. The law is currently superseded by the 1973 Supreme Court ruling in Roe v. Wade, but it is believed the nation’s high court will soon overturn Roe, leaving abortion regulation up to individual states.

Michigan’s 1931 abortion ban, which actually dates back to the 1840s, states that all abortions are felonious, and cannot be carried out unless necessary to “preserve” the life of the mother. The law has no exceptions for rape or incest.

The U.S. Supreme Court is expected to deliver a ruling on a case out of Mississippi this summer, and will then determine whether to overturn Roe. However, a draft of that forthcoming opinion was leaked earlier this month, and suggests that the court is, indeed, prepared to overturn Roe.

Prior to that leak, Planned Parenthood of Michigan and the ACLU filed a lawsuit seeking an “immediate court order restraining Michigan Attorney General Dana Nessel from “enforcing the unconstitutional ban against abortion providers,” the groups announced in April. 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.”

In a pageslong opinion, Michigan Judge Elizabeth Gleicher sided with the ACLU and Planned Parenthood, granting the groups’ motion and preventing the acting state attorney general, and “all local officials acting under (their) supervision,” from enforcing Michigan’s 1931 law should Roe be overturned.

Judge Gleicher stated that she is bound by a 1997 Michigan Supreme Court ruling, which determined that Michigan Constitution’s right of privacy did not include a right to abortion. However, Gleicher says that the right to bodily integrity as outlined in the state’s constitution makes a ban on abortions unconstitutional.

“Pregnancy and childbirth, particularly if unwanted, transform a woman’s psychological well-being in addition to her body,” Gleicher’s opinion reads. “As recognized in People v. Nixon half a century ago, legal abortion is actually safer than childbirth. Thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.

“... Should the United States Supreme Court overrule Roe v. Wade, plaintiffs and their patients face a serious danger of irreparable harm if prevented from accessing abortion services for the reasons set forth in (plaintiff’s) affidavit,” Gleicher also wrote. “The inability to exercise a fundamental constitutional right inherently constitutes irreparable harm.”

The opinion also states that, based on precedence, Michigan courts are allowed to interpret the state’s constitution in a different manner than the U.S. Supreme Court interprets the nation’s constitution.

While Planned Parenthood’s lawsuit was technically filed against Michigan Attorney General Dana Nessel, the state AG said she would not enforce Michigan’s abortion ban if Roe v. Wade is overturned. PP and the ACLU said, however, that just because Nessel has agreed not to enforce the law doesn’t mean that other state attorneys general wouldn’t enforce it in the future.

“This injunction is a victory for the millions of Michigan women fighting for their rights,” Nessel said Tuesday. “The judge acted quickly in the interest of bodily integrity and personal freedom to preserve this important right and found a likelihood of success in the state law being found unconstitutional. I have no plans to appeal and will comply with the order to provide notice to all state and local officials under my supervision.”

Judge Gleicher also stated that the plaintiffs have a “strong likelihood” of challenging the constitutionality of the 1931 law. However, Gleicher said that other laws regulating abortion in Michigan, apart from the 1931 ban, remain in full effect despite Tuesday’s ruling.

You can read Gleicher’s entire opinion below.

Michigan Gov. Gretchen Whitmer applauded the court’s Tuesday decision, but said that the work is “not over.”

“Today marks an important victory for Michiganders,” Whitmer said. “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.

“But our work is not over,” Whitmer said. “I want every Michigander to know: no matter what happens in DC, 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. 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. 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.”

The Michigan governor also has a lawsuit filed in hopes of preventing the enforcement of the state’s 1931 law, should Roe be overturned.

Whitmer’s lawsuit requests that the state supreme court hear the case directly, and overturn the state’s abortion ban, claiming it violates the Michigan Constitution. Barbara McQuade, former U.S. Attorney General for the Eastern District of Michigan, said that Whitmer’s lawsuit has a ‘decent shot’ at challenging the 1931 law, whose language is antiquated.

In Tuesday’s opinion, Gleicher also referenced how the verbiage used in the 1931 law does not align with abortion- and pregnancy-related language used today.

More: Whitmer has ‘decent shot’ at challenging Michigan’s 1931 abortion ban, ex-US attorney says

Enforcement of Michigan’s nearly century-old law banning abortions has been blocked by the state’s Court of Claims Tuesday, siding with a lawsuit that claims the ban is “unconstitutional.”
A Michigan Court of Claims judge on Tuesday, May 17, granted a motion filed by Planned Parenthood of Michigan and the ACLU, effectively preventing the state’s attorney general from enforcing a 1931 law that bans most abortions in Michigan. The law is currently superseded by the 1973 Supreme Court ruling in Roe v. Wade, but it is believed the nation’s high court will soon overturn Roe, leaving abortion regulation up to individual states.

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.