LANSING, Mich. – Gov. Gretchen Whitmer filed a lawsuit Thursday asking a Michigan court to recognize the right to get an abortion under the state constitution and to overturn a 176-year-old ban in the state that might take effect again if the U.S. Supreme Court's landmark Roe v. Wade ruling is vacated.
The Democratic governor's preemptive lawsuit, which was filed in Oakland County against prosecutors in 13 counties with an abortion clinic, came as the Supreme Court's conservative majority considers allowing states to ban abortion much earlier in a pregnancy and potentially overturning the right. Planned Parenthood of Michigan and its chief medical officer filed a similar lawsuit in the state Court of Claims to block enforcement of the 1931 law, which dates to an 1846 ban.
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Whitmer, who is up for reelection this year, asked the Michigan Supreme Court to quickly take up her case rather than let it wind through lower trial and appellate courts. A favorable decision could enable abortions to continue in Michigan after the federal high court rules.
“It was important for us to take action now, to ensure that women and providers across the state of Michigan know whether abortions will still be available in the state because it impacts their lives and our health care providers' practices. It's crucial that we take this action now to secure and ensure that the Michigan Constitution protects this right that we have had available for 49 years,” Whitmer told The Associated Press, saying nearly 2.2 million women may lose access to a safe, legal medical procedure.
Michigan is among eight states with an unenforced abortion ban that was enacted before the 1973 Roe decision legalized abortion nationwide. The law makes it a felony to use an instrument or administer any substance with the intent “to procure the miscarriage” of a woman unless necessary to preserve her life.
Whitmer wants the Michigan Supreme Court to declare a state constitutional right to abortion and to strike down the law, which could go back into effect if Roe is overturned or weakened. The lawsuit argues the law is invalid under the due process and equal protection clauses of the state constitution.
Michigan may soon be left with a near-total ban without even exceptions for rape and incest — “one of the most extreme laws in the country,” the governor told the AP. Her call to repeal the law has gone nowhere in the Republican-controlled Legislature.
The state's high court has four Democratic and three Republican justices.
Whitmer asked that the court intervene in part to avoid legal uncertainty when the federal high court issues its ruling on Mississippi's ban on abortions after 15 weeks of pregnancy. Should Roe be overruled or curtailed, she wrote, “health care providers may feel constrained to restrict access to abortion services to avoid potential criminal liability."
The complaint says that although the Michigan Supreme Court in 1973 ruled that Roe limited the effect of the state ban, the right to abortion has been undermined over 50 years of litigation in federal courts. The state's high court has not said whether the state constitution protects the right. The Michigan Court of Appeals ruled in 1997 that there is no state constitutional right to abortion — one reason the Supreme Court should step in immediately because that 25-year-old ruling is binding on lower courts, according to Whitmer.
The lawsuit points to “substantial ambiguity” about what the state ban prohibits.
Whitmer was criticized by groups that oppose abortion rights. Right to Life of Michigan President Barbara Listing called the suit “frivolous."
“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,” said Rebecca Mastee, a policy advocate at the Michigan Catholic Conference.
States on both sides of the abortion issue have been taking various steps to prepare for Roe being eroded or rescinded, including making it a crime to perform an abortion and banning legal action against people who aid or receive an abortion.
In Michigan, advocates have launched a ballot drive to enshrine abortion rights in the state constitution, but they will need about 425,000 voter signatures to get the initiative on the November ballot. Abortion rights proponents in Nebraska scored a surprising victory this week by derailing a bill that would have automatically outlawed abortion if Roe is overturned.
Also Thursday, seven Democratic county prosecutors who were named in Whitmer's lawsuit pledged to not enforce the anti-abortion law in Wayne, Oakland, Genesee, Washtenaw, Ingham, Kalamazoo and Marquette counties. The other six elected prosecutors who were sued are Republicans.
The defendant in the Planned Parenthood case is Michigan Attorney General Dana Nessel, a Democrat who has long said she would not enforce the ban. She said her office will not defend the law unless it is ordered to by a court. Other parties that support the law can seek to intervene, she said.
“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.
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Associated Press writer Corey Williams in West Bloomfield, Michigan, and video journalist Sharon Johnson in Atlanta contributed to this report.
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Follow David Eggert at https://twitter.com/DavidEggert00