Oklahoma on Tuesday enacted a near-total ban on abortion, with only a narrowly defined exception for maternal health. It’s the latest Republican-led state to impose tough abortion restrictions ahead of a summer Supreme Court ruling that could eviscerate Roe v. Wade, the landmark 1973 decision that recognized the constitutional right to have an abortion.
Other Republican-led states will almost certainly follow, with new abortion restrictions actively under consideration in Florida, Kentucky and West Virginia. Some lawmakers in those states are considering the kind of sweeping laws Oklahoma has passed, a sign of the confidence Republicans have gained in their ability to rewrite abortion policy in parts of the country where they hold the most power. . (HuffPost’s Alanna Vagianos wrote about it last week, in case you missed it.)
But if you think the effects of a Supreme Court ruling against abortion rights would be confined to the most deeply red-blooded states, think again.
Even parts of the country where Democrats have more influence have laws in place that would restrict or ban abortion access if Roe’s safeguards weaken or disappear altogether this summer. Such laws now exist in nearly half of the states, according to the Guttmacher Institute, and among them is Michigan, where a 1931 law prohibits abortion without exception for rape, incest or to protect the health of the mother.
The law hasn’t mattered for a long time: Michigan courts have declared it “unenforceable” because it violates Roe. And Dana Nessel, Michigan’s Democratic attorney general, says she has no plans to enforce it no matter what the Supreme Court decides this summer.
But Nessel is up for re-election this fall, and several of her would-be GOP opponents have already said they would sue under the 1931 law. Even if Nessel wins, she couldn’t prevent locally elected county prosecutors to prosecute themselves.
To put this in practical terms, it’s easy to imagine a prosecutor in one of Michigan’s most conservative counties suing a doctor who performs an abortion – and even easier to imagine that clinics in such regions are closing preventively because they cannot take the legal risk.
It is with these possibilities in mind that Governor Gretchen Whitmer — also a Democrat and also a pro-abortion rights supporter — is trying to act. Last week, she asked the Michigan Supreme Court for a set of rulings that would recognize a right to abortion in the state constitution, regardless of what the US Supreme Court says about Roe. (Planned Parenthood also filed a lawsuit seeking a similar ruling.)
“No matter what happens to Roe, I’m going to fight like hell and use every tool at my disposal as governor to ensure that reproductive freedom is a right for all women in Michigan,” Whitmer said. “If the Supreme Court of the United States refuses to protect the constitutional right to abortion, the Supreme Court of Michigan should intervene..”
As with any such filing, there can be no assurance that these legal arguments will prevail.
The crux of Whitmer and his allies’ argument is that Michigan’s constitution implicitly protects abortion rights in two places: its due process guarantee and its equal protection guarantee. If these arguments sound familiar, it’s because they’re the same basic arguments that abortion rights advocates have long made about the U.S. Constitution – and that the 6-3 conservative majority in the United States Supreme Court now seems set to reject.
Michigan Supreme Court justices can interpret the state constitution as they see fit, just as United States Supreme Court justices have full latitude to interpret the federal constitution in a way that aligns on their ideological priorities. The equal protection argument in particular may prevail, given the historical relationship between anti-abortion laws and efforts to reinforce traditional gender roles.
It also doesn’t hurt that Michigan’s Supreme Court now has a 4-3 Democratic majority.
(Judges, who depending on circumstances are either directly elected by voters or appointed by governors, are technically nonpartisan. But when they run they are approved by party conventions, and when they are appointed by a governor, they reflect the philosophical priorities of whoever is in office.)
But procedural issues could get in the way. Already, opponents of abortion rights, such as Michigan Right to Life and the Great Lakes Justice Center, have said Whitmer cannot go directly to the state Supreme Court for his decision. They also argue that prior state Supreme Court decisions have made it clear that the constitution does not guarantee the right to abortion, as Whitmer and Planned Parenthood say.
“Governor. Whitmer is ignoring the voices of Michiganders by bypassing all lower courts and legal precedents, just as the Supreme Court of the United States did when it decided Roe v. Wade,” said Barbara Listing, President of Michigan Right to Life.
Abortion rights advocates do not rely exclusively on the courts to protect these rights in Michigan. They are also starting a petition for a ballot initiative to change the state constitution so that it explicitly recognizes the right to abortion. But there is not much time for that. Organizers would need more than 400,000 signatures by early July, and they just announced the effort last month.
It should be noted that public opinion on abortion in Michigan is not particularly ambiguous. Polls have consistently shown that the majority of Michigan residents, like the majority of Americans, believe abortion should be legal in most cases.
But a lingering problem for abortion-rights champions in Michigan—and, indeed, the rest of the country, too—has been complacency: The minority of voters who are staunch opponents of abortion rights are on the whole more focused on their goal and more determined. to act.
A U.S. Supreme Court decision overturning Roe could change that, prompting a significant political backlash. But in those vast swaths of the country where tough anti-abortion laws are already in effect, the backlash may come too late.