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Old Michigan law could ban abortion, as Texas ignites Roe v. Wade debate

abortion protest
Michigan is one of eight states that never repealed an abortion ban after Roe v. Wade made the procedure legal throughout the nation. (Rachel Goodhew / Shutterstock.com)

LANSING — Reproductive rights advocates and abortion foes in Michigan are bracing for a renewed fight after the U.S. Supreme Court on Wednesday refused to suspend a new Texas law that effectively bans most abortions in that state.

Experts say the high court ruling has no immediate impact on Michigan women because it is specific to the unique Texas law, whose constitutionality remains in question because justices have not yet ruled on the merits of the case. 

But the Texas law is already inspiring copy-cat legislation in Florida, and there is a widespread belief the ruling could foreshadow a future Supreme Court decision on whether to overturn Roe v. Wade, the 1973 ruling that established a constitutional right to abortions for women. 

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“I'm not an attorney or a constitutional expert, but I don't think it takes one to say, 'Yeah, that's a pretty good signal," said Genevieve Marnon of Right to Life of Michigan, which has long pushed to limit or end access to legal abortion. “I’m thrilled.”

"Now is definitely the time for anyone who's capable of becoming pregnant to be nervous, and really anyone who has someone in their life who could become pregnant," said Dr. Sarah Wallett, an abortion provider and chief medical officer for Planned Parenthood of Michigan.

If the court, which includes three appointees of former President Donald Trump, is aiming to overturn Roe v. Wade, the ongoing Texas case may not be the vehicle. 

Instead, experts say it could be a case out of Mississippi that justices have agreed to consider and are expected to decide by next summer. In that state, Republicans adopted a law that bars most abortions after the 15th week of pregnancy. 

The Texas ruling shows abortion rights are "very much in peril," said Leah Litman, an assistant professor of law at the University of Michigan.

"The court has made clear that it will tolerate a bunch of gambits from states to prohibit abortion," Litman told Bridge Michigan. "It's a confirmation of the critics' worst fears."

What happens in Michigan if Roe is overturned?

If the Supreme Court reverses Roe, states could regulate abortion — and Michigan already has a law on the books from 1846 criminalizing the procedure. It had been unenforceable since Roe, but likely would be operational again if the law is overturned.

The Michigan law, as revised in 1931, would make it a felony for a medical provider to perform an abortion unless it is necessary to preserve the life of the mother. 

Michigan Attorney General Dana Nessel, a first-term Democrat, has vowed she will not enforce the Michigan abortion ban if Roe is overturned, stating in 2019 that she will not be part of “sending women to be butchered in back alleys” if abortion is criminalized.

“My sentiments on this issue have never changed,” Nessel said Thursday in a statement provided to Bridge Michigan, “nor has my commitment to protecting a woman’s right to make decisions in respect to her own body.”

That wouldn't prevent county prosecutors from enforcing the ban, and Nessels’ refusal to do so would surely be an issue in the 2022 election, when Republicans will seek to oust her and other Democrats who support abortion rights.

Michigan is one of eight states that never repealed its pre-Roe abortion ban, according to the Guttmacher Institute, a research and policy organization that supports reproductive rights. Several other states have post-Roe abortion restrictions that would be triggered if Roe was overturned.

"Unlike some states, we haven't codified Roe or taken any action to enshrine the right to abortion in our state law or constitution," said Wallett, with Planned Parenthood. 

If Roe is overturned, "access would be in danger."

Its possible reproductive rights supporters could try to repeal the 1931 law or enact a new one using the legislative or initiative process. 

As it stands, the GOP-led Legislature would not sign on, so any repeal would have to happen by voters at the ballot box. 

Does the Texas ruling have a direct impact on Michigan?

The U.S. Supreme Court did not actually rule on the constitutionality of the Texas law, but a 5-4 conservative majority denied a request to freeze the law while the court reviewed its merits. 

The Texas law effectively bans abortions after six weeks of pregnancy — before many women know they are expecting — by giving private citizens the right to bring lawsuits against anyone who assists in the procedure. 

Texas women can still get abortion in other states, but may have to travel hundreds of extra miles to do so. And experts say Wednesday’s ruling could permanently shut down abortion clinics there, even if the law is later deemed unconstitutional. 

Democratic President Joe Biden, a Democrat, assailed the ruling as an "unprecedented assault on a woman's constitutional rights" guaranteed under Roe v. Wade. 

Biden promised a federal review of steps his administration could take to ensure Texas women have access to legal abortion, "and what legal tools we have to insulate women and providers fro the impact of Texas' bizarre scheme of outsourced enforcement to private parties.” 

A leading abortion opponent, Marjorie Dannenfelser of the Susan B. Anthony List, praised Texas and urged the Supreme Court to give Americans “the opportunity to finally let their voices be heard on the greatest human rights issue of our day.”

In Wednesday’s unsigned opinion, the Supreme Court majority wrote that abortion providers who sought to block the Texas law did not meet a legal burden that would allow the court to block the law because of "novel" and "complex" procedural questions. 

"This order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts," the majority wrote.

As such, the ruling does not appear to have any specific impact on Michigan, said Marnon of Right to Life.  

“I think the only way that it would have any impact long term is, if the Supreme Court utilizes that particular case to overturn Roe.” 

Could Michigan copy the Texas law?

Michigan Gov. Gretchen Whitmer has vowed to veto any anti-abortion legislation and would surely reject any attempt to duplicate the Texas law in Michigan. 

“I have always stood with those fighting for their right to choose, and I will not stop now,” Whitmer said Thursday in a statement. “I will stand in the way of any bills that seek to strip away fundamental rights from women or get in the way of doctors’ ability to do their jobs.” 

But if Republicans oust Whitmer next year and retain the Legislature, “nothing stops them from writing a law like Texas' that effectively prohibits abortion,” said Litman, the U-M law professor.

This week’s Supreme Court ruling provides a “tool for a motivated Legislature to be able to effectively prohibit abortion and have a law go into effect,” she said. 

Even if Whitmer wins re-election next year, she is not a road block for abortion foes. 

That’s because Michigan also has a unique constitutional provision by which groups can use the initiative process to bypass the governor, an approach pioneered by Right to Life. 

If anti-abortion activists gathered at least 340,047 valid voter signatures for Texas-like legislation, they could send the initiative to what is now a Republican-led Legislature for possible enactment. 

As of now, Right to Life of Michigan does not have any plans to use the initiative process to adopt a Texas-like law, Marnon said. 

That's because Michigan already has a more restrictive ban in place, the 1931 law that would take effect if Roe is overturned.  

"We wouldn't want to plant a complete ban with one that would allow (some) abortions to continue," she said.

What other abortion restrictions does Michigan already have?

National polling suggests most Americans support access to legal abortion. That's true in Michigan too, where as of last fall, 65 percent of voters opposed the Supreme Court reversing Roe v. Wade, according to a Glengariff Group survey for The Detroit News.

But Michigan, like many states, already has several abortion restrictions that are enforceable because they do not directly conflict with Roe. 

Women here cannot obtain a legal abortion after their fetus is considered viable, typically at about 24 weeks or pregnancy, unless her life is in danger. 

Michigan also has an informed consent law, pushed by Right to Life in 1993, that requires providers to give women certain information about abortion — including depictions of their fetal development — at least 24 hours prior to the procedure. 

Additionally, parents of a minor must consent before their child undergoes an abortion.  

In 2012, GOP Gov. Rick Snyder signed a law that added several new regulations for abortion clinics that critics call burdensome. The next year, Right to Life and the Republican-led Legislature worked around his objections to ban abortion coverage as a standard feature in private health insurance plans. 

"They're all in place just to make abortion a little bit harder to access for people," said Wallett, the chief medical officer for Planned Parenthood.

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