Whitmer Seeks MI Court Ruling Striking Down Abortion Ban

Governor Gretchen Whitmer filed a lawsuit this morning in the Oakland Circuit Court arguing the Michigan Constitution protects a woman’s access to abortion and will use her executive authority to urge the Michigan Supreme Court to take the case directly.

This comes weeks ahead of the U.S. Supreme Court’s ruling of Dobbs v. Jackson which could overturn Roe v. Wade, bringing back into full force the state law criminalizing abortion with the only exception to save the mother’s life. It is a 1931 public act whose origins date to 1846.

“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,” Ms. Whitmer said in a statement. “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.”

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution. It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The lawsuit charges that the abortion ban violates the Michigan Constitution’s Due Process Clause, which the lawsuit asserts provides a right to privacy and bodily autonomy that is violated by the near-total ban on abortion. The lawsuit also argues the abortion ban violates the Michigan Constitution’s Equal Protection Clause, saying it denies equal rights for women.

The U.S. Supreme Court should rule on Dobbs by the end of June. That raises the question of whether a court might find the issue not yet ripe for consideration.

In a media call Wednesday, representatives from the governor’s office said the mere fact of uncertainty is grounds for the court to hear the case. They said the Michigan Supreme Court has only said the 1931 abortion ban is unenforceable insofar as it’s inconsistent with Roe, but the governor’s office said Roe as it was handed down does not exist anymore and is much more limited.

Once Oakland County accepts the complaint, Ms. Whitmer will send the Executive Message to the Supreme Court asking that it hear the case directly instead of having it works its way through the traditional court process.

Right to Life of Michigan slammed the governor’s action.

“Governor Whitmer is asking the Michigan Supreme Court to abuse their power by inventing a non-existing right to unlimited abortion,” the group tweeted. “If they don’t like state laws that have been voted on by the people and upheld in court, they can try to change them, but she wants them to cheat.”

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