Gov. Whitmer Files Lawsuit to Protect Legal Abortion in Michigan

Governor Gretchen Whitmer has filed a lawsuit and has used her executive authority to ask Michigan’s Supreme Court to resolve whether or not Michigan’s Constitution protects the right to abortion.

This comes during an ongoing, nationwide assault on abortion, including some states who have enacted laws banning abortion at conception, without exceptions for rape or incest.

“In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade,” said Governor Whitmer. “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. That’s why I am filing a lawsuit and using my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion.”

Governor Whitmer continued, “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.”

Governor Whitmer’s action Thursday represents the first time a governor has filed a lawsuit to protect a woman’s rights to abortion since the U.S. Supreme Court showed willingness recently to consider overturning or circumscribing the federal right to abortion.

The lawsuit asks the Supreme Court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution, as well as asks the court to stop enforcement of the 1931 Michigan abortion ban.

The ban violates the state’s due process clause, which provides a right to privacy and bodily autonomy that is violated by Michigan’s near-total criminal ban of abortion. Additionally, it violates the state’s Equal Protection Clause because it bans women equal rights as the law was adopted to reinforce antiquated notions of the role of women in society.

Currently, Michigan’s law that criminalizes abortion without exceptions for rape or incest was enacted in 1931. In 1973, the passing of Roe v. Wade rendered the state’s 1931 ban unconstitutional, making abortion legal in Michigan.

This year, Roe v. Wade could be overturned in the Dobbs v. Jackson case, prompting the state’s 1931 abortion ban.

According to a poll from Jan., 67.3% of Michiganders support Roe v. Wade, while 65.7% support repealing the state’s 1931 ban on abortion. Additionally, over 77% of Michiganders believe abortion should be a woman’s decision, and a large majority of Michiganders agree that abortion is a decision for a woman to make in consultation with a trustworthy doctor.