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Gov. Whitmer Files Lawsuit to Protect Abortion Rights in Michigan If Supreme Court Overturns Roe v. Wade

Michigan Gov. Gretchen Whitmer

Michigan Gov. Gretchen Whitmer.

Gov. Gretchen Whitmer (D) filed a lawsuit to protect abortion rights in Michigan on Thursday, in case the Supreme Court decides to overturn Roe v. Wade.

“With SCOTUS’ willingness to overturn Roe v Wade, I’m using my authority as governor to go directly to Michigan’s Supreme Court to urge them to decide if abortion is constitutional,” she announced in a Twitter thread on Thursday. “It’s bold but necessary.”

“A Common, Safe Medical Procedure”

Whitmer filed an earlier version of the lawsuit in a lower court in Oakland County, Michigan on Thursday, with Republican county prosecutor James Linderman named as lead defendant.

In Oakland County Circuit Court, Whitmer wants Judge Denise Langford Morris to declare that a 1931 long-dormant law criminalizing abortion in Michigan violates the due process and equal protection clauses of the state constitution and declare that both protect the right to an abortion.

“The Governor brings this action in the name of the state to safeguard the constitutional rights of the state’s residents and to restrain the unconstitutional abridgement of their right to obtain safe and lawful abortions,” reads the lawsuit, which names more than a dozen of the state’s county prosecutors as defendants.

The executive message to the Michigan Supreme Court asks the chief justice and associates to certify questions about whether the 1931 law violates the due process and equal protection clauses of the state’s constitution.

She also wants Michigan’s highest court to decide whether the state guarantees the right to an abortion.

“In Michigan today, abortion is a common, safe medical procedure,” her three-page executive message reads. “The nearly 30,000 women in Michigan who choose to have abortions each year do so for a variety of reasons—some because of a severe fetal anomaly, some because of a risk the pregnancy poses to their own health, some because they cannot financially support another child, and some because it is not the right time to have a child. However Michiganders personally feel about abortion, a sizable majority agree that it must remain legal.”

Whitmer said she had to resort to litigation because Michigan has had a dormant abortion ban on the books since 1931. The law—no longer enforced because it remains unconstitutional, for now—criminalizes abortion as a felony in all cases except to preserve the life of the mother.

“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” Whitmer wrote. “If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance—including in cases of rape and incest— and deprive Michigan women of the ability to make critical health care decisions for themselves. This is no longer theoretical: it is reality.”

“Health, Not Politics”

Whitmer is alluding to Supreme Court oral arguments late last year in the case of Dobbs v. Jackson Women’s Health Organization, involving a Mississippi ban seeking to prohibit abortions after 15 weeks of pregnancy.

The Dobbs case openly challenges two Supreme Court abortion precedents: Roe and Planned Parenthood v. Casey, which held that states could not place an “undue burden” on a pregnant woman’s ability to choose an abortion prior to the point of “viability.” That is the time a fetus can live outside the womb, believed to occur after 15 weeks.

During those arguments in December, Mississippi Solicitor General Scott G. Stewart made his goal of overturning those precedents clear.

Roe v. Wade and Planned Parenthood v. Casey haunt our country,” Stewart said at the time. “They have no basis in the constitution; they have no home in our history or traditions; they’ve damaged the democratic process.”

If the conservative majority on the Supreme Court of the United States rules in Mississippi’s favor, the constitutional hurdle preventing Michigan county prosecutors from enforcing the prior ban will be removed. Whitmer noted that would fly in the face of public opinion polls in Michigan.

Earlier this year, WDIV and Detroit News found in a survey that 67.3 percent of Michigan voters want Roe left in place, and only 19.1 percent of voters want the Supreme Court to overturn it.

Whitmer released a lengthy statement about her action:

However we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions. A woman must be able to make her own medical decisions with the advice of a healthcare professional she trusts – politicians shouldn’t make that decision for her. Overturning Roe will criminalize abortion and impact nearly 2.2 million Michigan women. If a woman is forced to continue a pregnancy against her will, it can have devastating consequences, including keeping families in poverty and making it harder for women and families to make ends meet. A near total abortion ban would rob women of their reproductive freedom and the ability to decide whether and when to have a child. It also would rob women of their economic freedom and their right to decide whether to become a parent: the biggest economic decision a woman will make in her lifetime. No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan. If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in. We must trust women—our family, neighbors, and friends—to make decisions that are best for them about their bodies and lives.

Linderman did not immediately respond to Law&Crime’s voicemail requesting comment.

Aaron Keller contributed to this report.

Update—April 7 at 5:40 p.m. Eastern Time: This story has been updated to quote from and provide court papers.

Read the legal actions, below:

(Image via Jeff Kowalsky/AFP/Getty Images)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."