By Marie E. Matyjaszek
With the unprecedented leak of the U.S. Supreme Court's draft opinion that would overturn Roe v Wade, states are scrambling to address the legality of abortion, both for and against.
Michigan is no exception, and has its own law from 1931, which criminalizes abortion, regardless of whether the pregnancy stemmed from rape or incest. Abortions were banned unless they were necessary to save the mother's life, as was advertising or selling abortion medications (MCL 750.14 & 750.15). When Roe went into effect in 1973, Michigan's law became unconstitutional and largely forgotten.
If Dobbs v Jackson Women's Health Organization overturns Roe, Michigan's almost 100-year-old law could be given new life. The national protection and right to an abortion would vanish, and each state would be able to make its own decision. Planned Parenthood has sued Michigan's attorney general, arguing that the 1931 law is in violation of Michigan's constitution. Recently Judge Gleicher, Michigan Court of Claims judge, issued a preliminary injunction against the 1931 law, as she believes that the Planned Parenthood lawsuit will be successful.
Had the injunction not gone into effect and if Roe was overturned, Michigan's law would eliminate the right to an abortion unless the mother's life was in jeopardy. Governor Gretchen Whitmer has filed a lawsuit claiming that the due process clause of the Michigan Constitution protects the right to an abortion. As the law is regulating a woman's right to bodily autonomy, and not a man's, it is also argued to be in violation of the equal protection clause. Michigan Attorney General Dana Nessel already has stated that she would not enforce the 1931 law; however, prosecutors in various counties have indicated their intent to uphold the law should it no longer be void.
Many view the injunction as a temporary victory and call for the Michigan Constitution to be amended to specifically include the right to an abortion, leaving no doubt about the legality of the medical procedure. With the potential for Roe to be overturned, states would be wise to continue their efforts to update their laws.
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Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. She can be reached by e-mail at matyjasz@hotmail.com.
