Michigan Gov. Whitmer sues to protect abortion rights in case of Roe overturning

Michigan Gov. Gretchen Whitmer is filing a lawsuit Thursday in an effort to protect abortion rights in the state.

"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," she 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."

Michigan is one of about 20 states where abortion could be immediately banned if Roe v. Wade were overturned because of either laws that predate Roe but were never removed from the books, so-called "trigger" laws that would go into effect in the event of the precedent being overturned, state constitutional amendments, or six- or eight-week bans that are not currently in effect but would ban nearly all abortions, according to a 2021 report by the Guttmacher Institute, a research organization that supports abortion rights.

In Michigan's case, abortion would be banned because of a 1931 state statute that criminalizes abortion, including in cases of rape or incest. The only exception would be in case of threat to the pregnant person's life.

That statute has not been enforced since Roe made abortion a national right, but it could go back into effect if Roe were overturned. Whitmer filed the lawsuit, which names the elected prosecutors of 13 counties that have abortion clinics as defendants, to undo the statute.

As governor, she is utilizing the rarely used executive message power, which includes the governor's right under the state constitution to "initiate court proceedings in the name of the state to enforce compliance with any constitutional or legislative mandate," to push the case forward. Effectively, Whitmer is asking the Michigan Supreme Court to pick up the case directly, bypassing the time it would take in trial and appeals courts.

"This is no longer theoretical: it is reality," Whitmer said in her statement about the possibility of Roe being overturned. "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."

Planned Parenthood of Michigan and Dr. Sarah Wallett, an abortion provider, also filed a lawsuit Thursday challenging the 1931 statute, on behalf of themselves and their patients.

"I joined this suit because it is fundamental to my oath as a physician to do no harm – and being forced to deny abortion care and violating the basic rights of my patients would cause them immense, irreversible harm," Wallett said in a statement.

Whitmer had previously supported an effort from the state Legislature to repeal the statute, however that effort has not moved the needle.

Her move to protect abortion rights in this sped-up manner comes as Roe v. Wade faces its biggest challenge in its 49 years with the U.S. Supreme Court expected to hand down a decision in a case out of Mississippi early this summer.

That case revolves around a ban on abortion after 15 weeks of a pregnancy. Previous Supreme Court precedent had stipulated abortion was legal up to the point of viability, which typically happens around 24 to 28 weeks.

During oral arguments in December, the conservative justices openly raised the prospect of overturning decades of legal precedent, sending up flares around the nation that the landscape for legal abortion could be radically changed.

If abortion were made illegal in Michigan, the average Michigander's driving distance to the nearest abortion clinic would expand from 11 miles to 261 miles, according to the Guttmacher Institute, as patients would have to travel out of state to seek an abortion.

With this, Michigan joins several states that have in recent months bulked up protections for abortion rights, apparently in response to the possibility of Roe being overturned.

"However we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions," Whitmer said in her statement. "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."

This move also comes as the jury deliberates in a trial over an alleged 2020 plot to kidnap and kill Whitmer. The four men accused could face life in prison if found guilty.