Supreme Court overturns Roe v Wade: What that means for abortion access in Michigan

State’s 1931 law banning most abortions currently blocked by courts

Demonstrators protest outside of the U.S. Supreme Court, Wednesday, May 4, 2022, in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. (AP Photo/Alex Brandon) (Alex Brandon, Copyright 2022 The Associated Press. All rights reserved.)

LANSING, Mich. – The United States Supreme Court has voted to overturn the 1973 Roe v. Wade ruling that made abortion legal nationwide, relinquishing control of abortion regulation to individual state governments.

After hearing a case out of Mississippi, the high court on Friday, June 24, officially ruled against its 1973 opinion that protected the right to have an abortion without excessive government restrictions. For the last several decades, people have been allowed to receive and administer abortions anytime before a fetus reached viability, which typically occurs at 24-28 weeks gestation -- though some states have blocked abortions beyond 20 weeks.

Individual states have since been allowed to regulate how abortions are carried out, but have not been able to ban them entirely. Some Republican-controlled states have attempted to further restrict the timeline in which an abortion can be carried out, but those laws were blocked by courts while Roe v. Wade was in effect.

Now, without Roe to supersede state laws, states can regulate abortions however they choose, or even ban them altogether.

A draft of the high court’s ruling in the Mississippi case, Dobbs vs Jackson Women’s Health, was leaked in May, and made clear the court’s intent to overturn Roe -- so Friday’s ruling was largely expected.

Some GOP-led states have already passed laws that restrict or ban most abortions in anticipation of the overturning of Roe. Some Democratic-controlled states have passed laws protecting abortion access should Roe be overturned.

Here’s what abortion access will look like in Michigan now.

Abortion access in Michigan post Roe

A nearly century-old law is on the books in Michigan that bans most abortions in the state completely.

Michigan’s 1931 abortion ban, which is an updated version of a law that 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.

In anticipation of Roe being overturned, Planned Parenthood of Michigan and the American Civil Liberties Union together filed a lawsuit in April seeking an immediate court order restraining Michigan Attorney General Dana Nessel from “enforcing the unconstitutional ban against abortion providers.” The lawsuit argues that Michigan’s 1931 abortion ban “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.”

A Michigan Court of Claims judge in May ruled in favor of PP and the ACLU, granting the groups’ motion and preventing the acting state attorney general -- and “all local officials acting under (their) supervision” -- from enforcing Michigan’s abortion ban if Roe is overturned.

So, as of Friday, June 24, Michigan’s 1931 law banning abortions is temporarily blocked and cannot be enforced. Abortion remains legal and available to individuals statewide.

In her published opinion, Michigan Court of Claims judge Elizabeth Gleicher stated that she is bound by a 1997 Michigan Supreme Court ruling that determined the 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.”

Even with the temporary injunction, Gleicher said that other laws regulating abortion in Michigan, apart from the 1931 ban, still remain in full effect.

Gleicher also referenced in her opinion how the verbiage used in the 1931 law does not align with the abortion- and pregnancy-related language used today.

It is important to reiterate that Gleicher issued a temporary injunction on the Michigan’s 1931 law -- so the decision to block the law from being enforced is not a permanent one.

The state’s Republican-controlled legislature has been granted permission to intervene in the lawsuit and participate as defendants. Lawmakers are expected to challenge Gleicher’s ruling in their effort to uphold the Michigan law that bans most abortions.

It is unclear what exactly will happen from here. The case could ultimately end up in front of the Michigan Supreme Court, but that may take some time.

Michigan Gov. Gretchen Whitmer in April filed a lawsuit similar to PP’s and the ACLU’s lawsuit, claiming that the 1931 law is unconstitutional. She has requested that the case go directly to the state supreme court and that they overturn the 1931 law entirely, but the state’s high court has not yet said whether they will hear the case.

Judge Gleicher said she believes the plaintiffs have a “strong likelihood” of challenging the constitutionality of the 1931 law in court.

So, though abortion remains legal in the state as of now, the future of abortion in Michigan is unclear. We will all have to wait and see what the courts decide.

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

Gov. Whitmer has previously said that she will strike down any legislation seeking to ban or restrict abortions in Michigan. Whitmer is up for reelection in November.

Michigan Attorney General Dana Nessel has also said that 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, hence the need for legal precedence.

Other Michigan prosecutors have also vowed not to enforce the 1931 abortion ban in their counties if the law takes effect.

Abortion regulation in Michigan

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.

Outside of Roe, Michigan has legally imposed 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.

The above regulations will likely be irrelevant if the state’s 1931 abortion ban takes effect, as that law bans most abortions entirely.

The Mississippi case

Prior to Roe getting overturned, laws seeking to restrict abortions were previously 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 case, known as Dobbs vs Jackson Women’s Health, is the case that was 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.

Overturning Roe’s precedent 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.’”

Statements

Here’s a statement from Senate Minority Leader Jim Ananich (D-Flint):

Rep. Brenda L. Lawrence:

Michigan Attorney General Dana Nessel:

Michigan Gov. Gretchen Whitmer:

Michigan Lt. Gov. Garlin Gilchrist:


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.