Democratic Gov. Gretchen Whitmer Files Lawsuit To Make Abortion A Constitutional Right

(Photo by JIM WATSON/AFP via Getty Images)

Nicole Silverio Media Reporter
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Democratic Michigan Gov. Gretchen Whitmer filed a lawsuit Thursday requesting a state court to recognize abortion as a constitutional right by overturning a 1931 state law criminalizing abortion.

The governor filed the suit in Oakland County against prosecutors in 13 counties with abortion clinics to overturn Michigan’s criminal abortion statute (MCL 750.14) which makes performing an abortion a felony with the exception of preserving the mother’s life. The statute ceased to be enforced since the U.S. Supreme Court ruled on the landmark case Roe v. Wade in 1973.

The law could again take effect if the Supreme Court rules to overturn its 1973 ruling in the upcoming case Dobbs v. Jackson Women’s Health Organization, which challenges Mississippi’s law banning abortions after 15 weeks gestation. Current precedent legalizes abortion nationwide until the point of fetal viability, which takes place between 24-28 weeks of pregnancy.

Whitmer’s action are to “ensure” that the Michigan Constitution allows for women to legally seek an abortion if the high court strikes overturns Roe, the Associated Press (AP) reported.

“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,” Whitmer told AP. “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.”

The lawsuit argues that the state’s abortion ban violates the due process and equal protection clauses of the state constitution. Currently, a physician may perform an abortion but is forbidden from forcing a miscarriage after the point of viability, the suit says. (RELATED: Michigan Gov. Gretchen Whitmer: Abortion During Coronavirus ‘Is Life Sustaining’)

“There is substantial uncertainty about whether MCL 750.14 is presently enforceable or the scope of impairment of the right to abortion that statute permits,” the suit says. “In the absence of a clear and authoritative pronouncement from the Michigan Supreme Court about whether, or to what extent, MCL 750.14 is valid under the Michigan Constitution, the exercise of the right to an abortion is impaired.”

The governor has warned that the Republican-controlled legislature in Michigan may ban abortion in all cases except rape, incest and health of the mother if Roe v. Wade is overturned or weakened, the AP reported. The state’s high court consists of 4 Democratic and 3 Republican justices.

Michigan Attorney General Dana Nessel said Thursday that she will defend the suit as she believes the statute is unconstitutional, according to the Detroit Free Press. She, along with Planned Parenthood of Michigan and obstetrician and gynecologist Sarah Wallett, filed suit to terminate the 1931 law.

“This law is dangerous. This law effectively strips women of their dignity and bodily autonomy, and in some cases, of their lives. I will not enforce it, and neither will I defend it. I will take no part of driving women back into the dark ages and the back alleys,” Nessel said, according to the Free Press.

Seven Democratic prosecutors listed in Whitmer’s lawsuit also vowed not to enforce a ban on abortion, according to AP. The six other prosecutors named are Republicans.

Abortion rights activists launched a ballot drive in the state to make the procedure a constitutional right, needing 425,000 signatures to incorporate the initiative into the November ballot, according to AP.

Rebecca Mastee, a policy advocate at the Michigan Catholic Conference, criticized Whitmer’s effort for attempting to “invalidate a long-standing policy” that has been in place for nearly a century, the outlet reported.