A lawsuit filed by the Michigan governor looking to secure the right to an abortion in Michigan has a “decent shot” in the state supreme court, according to a former U.S. attorney.
In April, Gov. Gretchen Whitmer filed a lawsuit and requested that it go straight to the Michigan Supreme Court to be heard. The governor is asking the state’s high court to overturn Michigan’s 1931 law that bans most abortions, and to acknowledge the right to an abortion under the state constitution.
The move comes as the U.S. Supreme Court hears a case out of Mississippi, where state legislators want to restrict the timeline in which an abortion can be legally carried out. The nation’s high court is expected to decide whether to overturn the landmark 1973 ruling in Roe v. Wade that protects the right to have an abortion without excessive government restrictions.
If the Roe ruling is overturned, states would once again be responsible for how abortions are restricted -- or not -- within their individual jurisdictions. In Michigan, a 1931 law, which dates back to the 1800s, bans most abortions “unless the procedure is necessary to preserve the pregnant person’s life.” There are no exceptions for rape or incest.
Lawmakers and residents around the country had reason to believe that Roe would be overturned this year, due to the conservative majority on the U.S. Supreme Court, and the particular intensity surrounding abortion rights discourse in recent years. There is even more reason to believe that Roe will indeed be overturned after a draft of the high court’s ruling on the Mississippi case was leaked Monday by Politico.
The leaked report, of which the content was confirmed by Chief Justice John Roberts on Tuesday, states that the court will overturn Roe completely.
Read: Report: Draft opinion suggests high court could overturn Roe
In response to the leak, Gov. Whitmer tweeted Tuesday, “Women are waking up this morning feeling hopeless; but we can’t go back. I’m more motivated than ever to keep fighting like hell to ensure abortion remains safe and accessible in Michigan.”
Whitmer’s lawsuit, filed on April 7, argues that Michigan’s 1931 law is invalid under the due process and equal protection clauses of the state constitution. Democrats have previously attempted to repeal Michigan’s 1931 law, but that effort has been blocked by the state’s Republican-controlled Legislature.
Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, says that Whitmer’s lawsuit may have a fighting chance in the state supreme court.
“The law from 1931 is a little bit archaic. It uses terminology that we don’t use today,” McQuade said in a Local 4 interview Tuesday. “I think there is actually a decent shot of challenging it before our Michigan State Supreme Court, where there is a majority of members who are progressive, selected by the conventions of the Democratic Party. So, perhaps that bodes for a different outcome than we’ve seen in the U.S. Supreme Court.
“There is a violation of due process when a statute uses language that is vague, and I think there’s a fair argument to be made that this statute does that.”
If the 1931 Michigan law does go into effect, several county prosecutors, alongside Michigan Attorney General Dana Nessel, have pledged not to prosecute abortion. Prosecutors from seven counties announced their decision as Gov. Whitmer announced the lawsuit.
Without prosecutors enforcing the 1931 law, people would be able to violate it without repercussions, according to McQuade, now a professor at the University of Michigan Law School. But how that might work in practice is not entirely clear.
“What’s interesting about that, is it could be this very curious scenario where it would be permissible to perform abortions in some counties in Michigan -- where you have a prosecutor who’s going to decline to enforce it -- and in some counties where it (would be) a crime,” McQuade said. “Now, I imagine that if it’s a crime anywhere, there will be that chilling effect that most performers, most health providers, are going to stand down and not want to perform abortions in Michigan.”
The situation is even murkier when factoring in the statute of limitations. A prosecutor could refuse to prosecute an abortion case, but if their term ends before the statute of limitations does on someone’s case, that case could potentially be prosecuted by the next prosecutor.
A similar lawsuit was filed alongside Whitmer’s by Planned Parenthood of Michigan and the ACLU in April, seeking the same outcome but through a different process.
Watch McQuade’s entire Tuesday interview in the video player below.
Read more: Leaked SCOTUS opinion: A look at the future of abortion in Michigan if Roe is overturned