Michigan Can’t Enforce Pre-Roe Abortion Ban If Roe V. Wade Is Overturned, Judge Rules


Michigan’s 1931 abortion ban cannot start being enforced again if the Supreme Court overturns Roe v. Wade in the coming weeks, a state judge ruled Tuesday, blocking one of nine state abortion bans from before Roe was decided that could soon take effect if the court overturns the landmark ruling as expected.

Key Facts

The Michigan Court of Claims issued a preliminary injunction that bars the state government from enforcing the ban as the litigation plays out, after Planned Parenthood sued the state in an effort to block the decades-old legislation.

The law bans all abortions except to save the life of the mother, and classifies any abortions that are performed in violation of the ban as manslaughter.

Judge Elizabeth L. Gleicher ruled there’s a “strong likelihood” Planned Parenthood would win the case as it moves forward, and the preliminary injunction should be granted to avoid the “irreparable harm” that will take place if the U.S. Supreme Court overturns Roe.

Gleicher ruled abortion is a protected right under the Michigan Constitution, finding it grants a “fundamental” right to “bodily integrity,” and “the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.”

The judge noted that even if the Supreme Court issues a federal ruling overturning Roe, the state court is “not constrained” by its decision, as that would be based on the U.S. Constitution and the state court is separately determining whether abortion is legal under the Michigan Constitution.

Michigan Attorney General Dana Nessel, who the lawsuit was filed against, didn’t oppose the lawsuit, and said in a statement Tuesday the ruling was a “victory” for Michigan women and would not be appealed.

Crucial Quote

“If a woman’s right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth,” Gleicher wrote.

What To Watch For

While Nessel has no plans to appeal the ruling, the AG is up for reelection this fall. That means if she’s replaced by a Republican, they could possibly try to appeal the ruling and put the ban back into effect.

Big Number

Nine. That’s the number of states that have abortion bans on the books dating back from before Roe v. Wade: Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia and Wisconsin. Of those, Arkansas, Mississippi, Oklahoma and Texas also have “trigger bans” that would ban abortion once the Supreme Court overturns Roe, which would likely take precedence. Alabama also has a 2019 abortion ban that’s been blocked in court and would now likely take effect, making its pre-Roe law less crucial.

Key Background

Enforcing pre-Roe abortion bans has become a major question after Politico reported earlier this month the Supreme Court is likely poised to overturn Roe, based on a leaked draft opinion from February in a case concerning Mississippi’s 15-week abortion ban. (The ruling is not yet final, and the official opinion will likely be released in June.) Nessel had said before Tuesday’s ruling she would not have enforced the law if it took effect, and Wisconsin AG Josh Kaul has similarly said he has no plans to enforce that state’s pre-Roe ban. In Arizona, state Republicans have conflicting views on whether the state’s decades-old law would take effect again, as Gov. Doug Ducey has said Arizona’s 15-week abortion ban would take precedence while GOP state lawmakers have pushed for abortion to be totally restricted. West Virginia AG Patrick Morisey has so far declined to comment on whether the state ban will be reinstated until a final ruling is issued.

Further Reading

Michigan Gov. Whitmer, Planned Parenthood Sue Over State’s 90-Year-Old Abortion Ban In Case Roe V. Wade Is Overturned (Forbes)

Abortion fight thrusts state attorney general races into the forefront (NBC News)

Here’s What Will Happen If The Supreme Court Overturns Roe V. Wade (Forbes)

Abortion rights advocates are raising alarms about a nearly century-old state law (CNN)

Source: https://www.forbes.com/sites/alisondurkee/2022/05/17/michigan-cant-enforce-pre-roe-abortion-ban-if-roe-v-wade-is-overturned-judge-rules/