Michigan prepares for legal fight as SCOTUS draft opinion suggests overturning Roe V. Wade
LANSING, Mich. — Michigan is preparing for a fight as the top court in the country considers throwing out the legal precedent that gives women the right to an abortion.
On Tuesday morning, Supreme Court Chief Justice John Roberts confirmed a draft opinion published by Politico, reporting the court was in favor of overturning Roe V. Wade, was authentic. Roberts wrote in a statement that the publishing of the draft opinion would not affect the Court's decision, and Justices are allowed to change their votes before the final opinion is announced to the public. Roberts also said he had ordered an investigation into how the draft opinion came to be released, a rare but not entirely unprecedented move in the Supreme Court, according to legal experts.
If the U.S. Supreme Court does strike down the federal Roe V. Wade decision, it would trigger a nearly century-old state law that would ban nearly all abortions in Michigan, even in cases of rape or incest.
“Theoretically, as soon as the Supreme Court rules, they would go into effect immediately,” said Kyla Stepp, assistant professor of political science and director of the Pre-Law Center at Central Michigan University.
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The law, Act 328 of 1931, has been sitting dormant since 1973, when Roe overruled it on a federal level. The law makes it a felony for anyone to perform or assist in an abortion.
“Clinics, doctors, others helping women to get abortions would probably need to stop immediately or they could face prosecution,” said Stepp.
If the 20th century law went into effect, Stepp said it could create a legal free-for-all as Attorney General Dana Nessel, a vocal proponent of abortion rights, has said she will not enforce the rule. Stepp said the prosecution could then fall to different jurisdictions around the state, which could draw legal challenges.
“It certainly is not straightforward and clear-cut what will happen," said Stepp. "The striking down Roe V. Wade is relatively straightforward, but ‘Will it actually happen in practice in these states like Michigan?’ is not straightforward at all.”
In Michigan's Republican-led Legislature, efforts to guarantee the right to an abortion haven't gone far.
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Advocates on both sides are gearing up for a fight beyond the Statehouse.
“I will tell you, we are just beginning the fight again, to be honest. And this time it’s gonna get a lot more fierce than the last round," said Michigan State Sen. Rosemary Bayer, D-Beverly Hills. "We are stronger than we ever were before, every battle that the women have taken on have won. This one we are gonna win not just for the women. We are going to take this to people who suffering from these kinds of injustices all over.”
Bayer said she made the choice to have an abortion procedure at 29 years old, when she found she had an ectopic pregnancy while trying for a second child. Bayer said had she not had access to legal abortion because of Roe V. Wade, she would have died.
"We will do anything we can to stop this from happening to the women of Michigan," Bayer said.
A proposed ballot measure introduced in January by Planned Parenthood Advocates of Michigan, the American Civil Liberties Union (ACLU) of Michigan, and Michigan Voices aims to amend Michigan's constitution to include the right to an abortion.
Planned Parenthood of Michigan filed a lawsuit in April in an attempt to block the 1931 law. The Planned Parenthood lawsuit was filed in the Michigan Court of Claims, naming Michigan Attorney General Dana Nessel as a defendant.
Gov. Gretchen Whitmer also filed a lawsuit last month to stop the state's abortion ban from going into effect, calling on the Michigan Supreme Court to weigh in on the matter directly.
“Overturning Roe will criminalize abortion and impact nearly 2.2 million Michigan women. If a woman is forced to continue a pregnancy against her will, it can have devastating consequences, including keeping families in poverty and making it harder for women and families to make ends meet," Whitmer wrote at the time the lawsuit was filed.
The Michigan Supreme Court generally does not weigh in on lawsuits in other state courts, legal experts said, but could choose to give an opinion on Whitmer's suit if it is determined it's immediately relevant to the public interest.
“If the [U.S.] Supreme Court does, and it looks like they will, overturn Roe, then it becomes a very relevant law and a very relevant matter that the courts are gonna have to get involved in,” said Stepp.
Right to Life of Michigan, which advocates for anti-abortion legislation, has signed on to fight Whitmer's lawsuit in court.
“We're on defense," said Right to Life of Michigan legislative director Genevieve Marnon. "Michigan is very well-suited to protect, to extend legal protection to the unborn child from conception all the way through all nine months of pregnancy, so our goal, Right to Life, of course, is to defend our abortion ban and defend the laws and the precedent that we have in Michigan.”
In a poll conducted by WDIV/Detroit News in January 2022, data showed 63.7% of Michiganders support Roe V. Wade, and 65.7% support the repeal of Michigan’s 1931 trigger ban on abortion.
Stepp said even if Roe is overturned, it's uncertain when the Court would have the decision take effect.
On Tuesday, hundreds rallied on the steps of the Michigan Statehouse, demanding Roe V. Wade be upheld, and if not, that the state put in place safeguards to continue allowing abortions.
Some protesters signed the "Reproductive Freedom for All" petition that would amend Michigan's constitution to allow for abortion protection.
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