Gov. Whitmer is suing to overturn a 1931 Michigan law that criminalizes abortion services. While the law has not been enforced in nearly 50 years, it could become active if the U.S. Supreme Court overturns Roe v. Wade.
Michigan Gov. Gretchen Whitmer has filed a lawsuit against several county prosecutors, asking the state Supreme Court to reaffirm women’s right to abortion.
According to The Associated Press, the preemptive lawsuit was filed in Oakland County against 13 Republican county prosecutors.
The complaint was submitted as the United States Supreme Court contemplates a case that could let states ban abortion early in pregnancies—or, perhaps, restrict women’s access to abortion services outright.
CNN reports that the lawsuit is effectively a challenge to Michigan’s own abortion ban, which was enacted in 1931 but is not currently enforced due to Roe v. Wade.
“We’ve got to take this currently assault on women’s rights seriously and use every tool we have to fight back,” Whitmer told CNN+’s Kasie Hunt on The Source with Kasie Hunt. “This is not just a theoretical risk. This is a real and present danger. And that’s why I filed this lawsuit.”
Whitmer’s office alleges that Michigan’s outstanding abortion ban is unconstitutional and in violation of the state’s due process clause.
A Whitmer representative further told CNN that, if Roe v. Wade is overturned and Michigan’s 1931 abortion ban becomes enforceable, the state would have one of the most extreme abortion laws in the entire country.
Michigan’s inactive abortion ban, says The Associated Press, makes it a felony to use “any instrument” or administer any substance with the intent to “procure the miscarriage” of a woman, unless such a procedure is necessary to preserve an expecting mother’s life.
The 1931 provides no other exceptions—not even for cases of rape or incest.
The Associated Press notes that Whitmer’s office had already petitioned the state legislature to repeal the abortion ban or emplace other protections.
However, Michigan’s Republican-dominated congress has refused to take action, prompting Gov. Whitmer to file suit and request the state Supreme Court’s intervention.
Religious conservatives, including Right to Life (Michigan) members, said that Whitmer’s lawsuit is “frivolous” and should be discarded by the judiciary.
Rebecca Mastee, a policy advocate at the Michigan Catholic Conference, suggested that the governor has erred in asking the Supreme Court to legislate from the bench.
“While the legality of abortion is contingent upon democratic structures, it is unfortunate that the judicial branch is being used to try to invalidate a long-standing policy approved by elected representatives and left untouched by the Legislature for nearly a century since,” Mastee said.
According to The Associated Press, abortion rights activists and opponents have both been preparing for a potential revocation of Roe v. Wade. Some women’s advocates have already launched a ballot drive to permanently enshrine abortion access in the state constitution, but they will need to obtain nearly a half-million signatures to get the issue on the upcoming November ballot.
Meanwhile, state Attorney General Dana Nessel said her office will not enforce the abortion ban if it is forced back into effect.
“I didn’t become attorney general so that I could head an office that put women in a position in which some of them will likely die,” Nessel said in a statement.