Michigan’s lawsuit on 1931 abortion ban upholds status quo of Roe as trial continues, but abortion access still hangs in the balance

Planned Parenthood of Michigan’s lawsuit to block a 1931 state law banning abortion was granted a preliminary injunction on May 17th, which will maintain the status quo set by Roe v. Wade until after the Michigan case is decided—even in the event that Roe is overturned. 

 

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The lawsuit filed in April—Planned Parenthood of Michigan v. Attorney General of the State of Michigan—was impacted by the US Supreme Court’s leaked draft decision to overturn Roe earlier this month. The lawsuit would block the enforcement of a 1931 Michigan law outlawing all abortion—including rape and incest—unless there is a clear and present danger for the woman, according to NPR. It is unknown how the preliminary injunction will affect the timeline of the lawsuit. 

Back in April—before the Supreme Court’s draft decision was leaked—Governor Gretchen Whitmer filed her own lawsuit in a united effort with Planned Parenthood asking the Michigan Supreme Court to rule that the 1931 ban on abortion violates the state constitution. She argues that the Michigan State Constitution protects a right to bodily integrity. 

The 1931 law was never repealed, but the Michigan Supreme Court ruled the law unenforceable in 1973, after the Roe decision. Before the preliminary injunction, the potential repeal of Roe would have led to the immediate re-effect of the 1931 law. The status quo will however be kept upon a Roe decision until the Michigan courts make their own decision on the law. 

“Today marks an important victory for Michiganders,” Gov. Whitmer said after the injunction was granted. “The opinion from the Michigan Court of Claims is clear and sends the message that Michigan’s 1931 law banning abortion, even in cases of rape or incest, should not go into effect even if Roe is overturned. It will help ensure that Michigan remains a place where women have freedom and control over their own bodies. But our work is not over. I want every Michigander to know: no matter what happens in DC, I’m going to fight like hell to protect access to safe, legal abortion in Michigan …”

Though Planned Parenthood’s suit is against the Attorney General (AG)—Dana Nessel—she has stated her opposition to the law, saying she refuses “to enforce this draconian law that will endanger their lives and put to jeopardy the health, safety, and welfare of the lives of each and every woman in the state of Michigan.”

Nessel also said that if the 1931 law were to be withheld, she would not prosecute, but leave it up to local county prosecutors to act if they chose to. “I don’t think that I have the authority to tell the duly elected county prosecutors what they can and what they cannot charge,” she said in a press conference

The AG’s comments received criticism from pro-life advocates, including from Genevieve Marnon, Legislative Director of Right to Life of Michigan, in an NPR interview on May 17th. Marnon said Nessel and other county prosecutors would not be doing their job by refusing to prosecute. 

“I think that if a prosecuting attorney decides that they want to repeal laws—essentially because that is what they would be doing—you are telling the lawmakers, ‘I don’t like the law,’ ,’” Marnon said. “So if they really don’t like the law, maybe they should run for office and go through the democratic process of amending the law, rather than just saying, ‘I refuse to do my job.’”

Marnon said Right to Life of Michigan is supportive of the 1931 law—even in the case of rape. “We definitely support, of course, punishing the rapist, but we don’t support killing the unborn, innocent child,” she said. 

Marnon also said that she advocated for funds for Right to Life of Michigan and more maternal health resources in the FY2022 budget, but this was vetoed by the governor. However, the legislature has continued to use their budget proposals for the upcoming FY2023 to limit providers from practicing abortions. 

In the Senate budget bill, there is language “prohibiting funding in the form of a grant, reimbursement, contract, or any other type of payment from being provided to an entity that engages in [abortion] activities,” according to the budget summary. This budget awaits a second reading in the House. 

The House budget bill also has language to restrict funds to abortion providers and abortion-related activities, but also includes $50,000 to provide notice and information to providers and the public about this restriction. It also allocates $10 million to fund marketing programs and educational materials that promote adoption as an alternative to abortion. This budget recently returned to the House with an S1 substitute, which waits to be deliberated. 

There is also a bill in the legislature, that would codify a woman’s right to an abortion any time before fetal viability, which is generally considered to be around 23-24 weeks after conception. This bill—which was introduced in Nov. 2021—still lies in the Senate Health Policy and Human Services Committee.