2 lawsuits filed to protect abortion rights in Michigan: What to know

Two separate lawsuits were filed Thursday in an effort to secure abortion rights in the state of Michigan, should the federal Roe v. Wade ruling be overturned and leave abortion rules up to individual states.

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.

Here’s what we know so far.

Some background

In 1973, the U.S. Supreme Court issued a landmark ruling in the court case known as Roe v. Wade, effectively protecting the right to have an abortion without excessive government restrictions. The high court will soon rule on an abortion ban out of Mississippi, and justices will have the opportunity to revoke Roe v. Wade if they so choose.

With a conservative majority on the Supreme Court, many believe that there is a real possibility that Roe v. Wade will be lifted.

If the federal ruling is revoked, individual states will once again set the rules for abortion access in their jurisdictions.

In Michigan, there is a law on the books from the 1930s that would ban most abortions. This law -- originally from the 1800s but updated in 1931 -- was superseded by the federal ruling, so it has not been in effect for decades. However, if the local law takes effect again, prosecutors could choose to enforce it -- which would “abruptly cut off access to essential health care for millions of Michiganders,” a press release from the American Civil Liberties Union (ACLU) reads Thursday.

Related: Closer look: How laws, new and old, could restrict abortion rights in Michigan

The 1931 law makes it a felony to use an instrument or administer a substance with the intent “to procure the miscarriage” of a woman, unless necessary to preserve her life.

Abortions in Michigan today

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.

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.

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Gov. Whitmer’s lawsuit

On Thursday, 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 Thursday 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.

More: Michigan governor sues to secure abortion rights, vacate ban

The governor said last year that she will stand in the way of any state legislation seeking to prohibit women’s “fundamental rights.”

Planned Parenthood/ACLU lawsuit

Planned Parenthood of Michigan and Michigan abortion provider Dr. Sarah Wallet on Thursday 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.”

Last year, AG Nessel said that she would not enforce the states abortion ban if Roe v. Wade is overturned.

“We believe that the right to access abortion care is already protected in the Michigan Constitution, and we’re asking the court to affirm that through this suit,” said Deborah LaBelle, lead counsel for Planned Parenthood of Michigan. “Michiganders have the right to privacy, bodily integrity, and civil rights protections, all of which encompass accessing basic reproductive health care, including abortion. There is no room for any gray area on the fundamental right to bodily integrity and the ability for every person to decide their futures for themselves.”

Local prosecutors support efforts

New Washtenaw County Prosecutor Eli Savit, who has pushed for progressive policies since taking office, said last year that his office will not prosecute “any person for exercising reproductive freedom.” He says that, for as long as he is in office, he will not prosecute abortions or enforce the 1931 abortion ban.

Amid the announcements of the new lawsuits, Savit tweeted Thursday that he and six other county prosecutors in Michigan support the governor’s effort and refuse to prosecute abortion. Prosecutors from Oakland, Ingham, Genesee, Wayne, Marquette and Kalamazoo counties joined Savit in a pledge to protect abortion rights.

What’s next

Several Republican-controlled states and their legislatures -- like Texas, Missouri, Idaho, Florida, Arizona and Oklahoma -- have passed legislation that further restrict or prohibit most abortions entirely. State laws are still superseded by the federal ruling in Roe, but could take effect if that ruling is overturned or weakened.

Read more: With Roe in doubt, states act on abortion limits, expansions