Oklahoma on Tuesday enacted a near-total ban on abortion, with only a narrowly defined exception for the health of the mother. It’s the latest Republican-run state to put severe abortion restrictions on the books in anticipation of a summer Supreme Court decision that could eviscerate Roe v. Wade, the landmark 1973 ruling that recognized a constitutional right to have an abortion.
More Republican-run states are almost sure to follow, with new abortion restrictions actively under consideration in Florida, Kentucky and West Virginia. Some lawmakers in those states are contemplating the kind of sweeping laws that Oklahoma passed in a sign of how just confident Republicans have become about their ability to rewrite abortion policy in parts of the country where they hold the most power. (HuffPost’s Alanna Vagianos wrote about this last week, in case you missed it.)
But if you think that the effects of a Supreme Court ruling against abortion rights would be confined to the most deeply red states, think again.
Even some parts of the country where Democrats hold more sway have laws on the books that would restrict or prohibit abortion access if Roe’s guarantees become weaker or disappear altogether this summer. Such laws now exist in nearly half the states, according to the Guttmacher Institute, and among them is Michigan, where a 1931 law prohibits abortion without exceptions for rape, incest or to protect the mother’s health.
The law hasn’t mattered in a long time: Michigan’s courts have declared it “unenforceable” because it violates Roe. And Dana Nessel, Michigan’s Democratic attorney general, says she has no intention of enforcing it, no matter what the Supreme Court rules this summer.
But Nessel is up for reelection this fall, and several of her potential GOP opponents have already said they would prosecute cases under the 1931 law. Even if Nessel prevails, she couldn’t stop locally elected county prosecutors from bringing cases on their own.
To put this in practical terms, it’s easy to imagine a prosecutor in one of Michigan’s more conservative counties bringing a case against a doctor who performs an abortion ― and even easier to imagine clinics in such areas shutting down preemptively because they can’t take the legal risk.
It’s with those possibilities in mind that Gov. Gretchen Whitmer ― also a Democrat and also a supporter of abortion rights ― is trying to act. Last week, she asked the Michigan Supreme Court to issue a set of rulings that would recognize a right to abortion in the state constitution regardless of what the U.S. Supreme Court says about Roe. (Planned Parenthood also filed a lawsuit seeking a similar ruling.)
“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,” Whitmer said. “If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in.”
As with any such filing, there’s no guarantee these legal arguments will prevail.
The gist of the argument from Whitmer and her allies is that Michigan’s constitution implicitly protects abortion rights in two places: its guarantee of due process and its guarantee of equal protection. If these arguments sound familiar, that’s because they are the same basic arguments that abortion rights advocates have long made about the U.S. Constitution ― and that the 6-3 conservative majority on the U.S. Supreme Court now seems prepared to reject.
The justices of Michigan’s Supreme Court can interpret the state constitution any way they see fit, just as justices on the U.S. Supreme Court have leeway to interpret the federal constitution in ways that line up with their ideological priors. The equal protection argument in particular might carry the day, given the historical relationship between anti-abortion laws and efforts to reinforce traditional gender roles.
It also doesn’t hurt that the Michigan Supreme Court now has a 4-3 Democratic majority.
(The justices, who, depending on the circumstances, are either elected directly by voters or appointed by governors, are technically nonpartisan. But when they run they are endorsed 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 can’t go straight to the state Supreme Court for her ruling. They also argue that prior state Supreme Court rulings made it clear that the constitution does not guarantee a right to abortion, as Whitmer and Planned Parenthood say.
“Gov. Whitmer is ignoring the voices of Michiganders by bypassing all lower courts and court precedent, just as the U.S. Supreme Court did when they decided on Roe v. Wade,” said Barbara Listing, president of Michigan Right to Life.
Abortion rights supporters aren’t depending exclusively on the courts to protect these rights in Michigan. They’re also running a petition drive for a ballot initiative to amend the state constitution so that it recognizes a right to abortion explicitly. But there’s not a lot of time for that. Organizers would need more than 400,000 signatures by early July, and they just announced the effort last month.
It’s worth noting that public opinion on abortion in Michigan isn’t especially ambiguous. Polls have consistently found that the majority of Michiganders, like the majority of Americans, think abortion should be legal in most cases.
But a persistent problem for champions of abortion rights in Michigan ― and, really, the rest of 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 ruling striking down Roe could change that, sparking a significant political backlash. But in those large swaths of the country where strict anti-abortion laws are already on the books, the backlash might come too late.