The clock is ticking on five decades of abortion rights in Michigan.
But advocates of reproductive autonomy aren’t going down without a fight.
Michigan is one of 26 states with laws banning abortion that would go back into effect if the U.S. Supreme Court overturns Roe v. Wade, the landmark decision in 1973 that established the right for people to terminate their pregnancy. The case invalidated Michigan’s 1931 ban on abortions.
But now, according to a leaked draft decision from the U.S. Supreme Court published last week, five conservative justices are poised to reverse constitutional protections for abortion, arguing that Roe v. Wade was wrongly decided.
When the final decision is released, which could be in June or July, legal experts say Michigan’s ban on abortions will go back into effect.
For many advocates and legal observers, the draft decision — published by the national politics website Politico last week — came as no surprise because Republicans have been successful in shifting the makeup of the Supreme Court to the right.
“I think like everyone who has been on the front lines, or has been an advocate, or who’s been paying attention, we knew that this was a very possible outcome,” Gov. Gretchen Whitmer tells Metro Times. “It still was devastating.”
By anticipating the decision, advocates have gotten in front of the issue and say they are now prepared for a showdown to protect reproductive autonomy.
Fighting in court
In Michigan, advocates of reproductive rights have launched a two-pronged defense of the right to abortion — in the courts and at the ballot box.
Whimter and Planned Parenthood, the largest abortion provider in Michigan, each filed separate lawsuits last month that argue abortion is protected under the Michigan constitution’s due process and equal protection clauses.
“When I filed the lawsuit, a lot of people suggested it was too early, that it wasn’t quite right,” Whitmer says. “Well, this draft opinion tells you it absolutely is not too early.”
Calling the moment “urgent,” Whitmer says overturning Roe “will be a profound setback for women.”
“In Michigan, we will revert to a law that is over 90 years old,” she says. “Michigan would go from a pro-choice state overnight to having one of the most extreme laws in the country, that doesn’t even have an exception for rape or incest.”
In April, Whitmer used her power as governor to file a lawsuit on behalf of the constitutional rights of Michiganders. Whitmer also invoked a rarely used gubernatorial power called “executive message,” which allows her to bring a lawsuit directly to the state Supreme Court, bypassing the lower courts.
Whitmer’s lawsuit was filed in Oakland County Circuit Court against 13 county prosecutors who have abortion clinics in their jurisdictions. The lawsuit calls on the state Supreme Court to acknowledge that the Michigan constitution affords women reproductive rights and agency over their own bodies.
“Michigan would go from a pro-choice state overnight to having one of the most extreme laws in the country.”
On the Michigan Supreme Court, which has yet to weigh in on the constitutionality of the state’s ban, Democratic-nominated justices hold a 4-3 majority.
Still, Whitmer acknowledges the fate of her lawsuit is by no means a foregone conclusion.
“There’s no guarantee,” she says. “But we have a compelling case. For 50 years, this has been the law of Michigan. It has been crucial to women, as we live our lives, to have full agency over our bodies; as we participate in the economy, to be able to make our own health care choices. And for this state to go 90 years backward … [it] will have devastating consequences on women’s lives and on our families’ lives, and on our health care options and on our economy.”
The Planned Parenthood lawsuit makes many of the same arguments. The big difference is that it’s filed in the Michigan Court of Claims. The lawsuit seeks to declare that the constitution protects reproductive autonomy.
Attorneys in the case plan to ask the court to file an injunction to prevent the ban from going into effect until judges have an opportunity to determine whether the constitution protects abortion access.
“If we can get an injunction, it should mean that our providers don’t have to immediately close their doors, and our state won’t immediately erupt into chaos,” says Merissa Kovach, a policy strategist for the American Civil Liberties Union in Michigan. “It will give voters an opportunity to vote in November without having a gap in care in Michigan.”
The suit says a higher court’s decision “is both urgently needed and long overdue.”
Fighting at the ballot box
The courts aren’t the only way to overturn the ban. In March, Reproductive Freedom for All, a coalition of advocacy organizations, launched a petition drive to amend the state’s constitution to affirm abortion rights.
Since the U.S. Supreme Court’s draft decision was leaked, about 19,000 new volunteers have signed up to help collect signatures for the petition drive, according to Kovach, an organizer. To place the initiative on the November ballot, the group must collect more than 424,000 valid signatures by mid-July.
In addition to using volunteers, the coalition is hiring professionals to circulate petitions because obtaining hundreds of thousands of signatures is a tall order.
“We need to fire on all cylinders,” Kovach said. “We want to ensure that if the Supreme Court goes all the way, that voters are going to have the power to make sure the right to legal abortion remains in Michigan and protected under the Michigan constitution.”
Polls have shown that a majority of Michigan voters support abortion rights. In a Detroit News-WDIV poll of 600 likely voters in January, two-thirds of respondents said they oppose the Supreme Court overturning Roe v. Wade, with only 19% saying they support it.
Last week, Progress Michigan, a progressive nonprofit, released findings from its poll of 849 voters in April, showing that 57% of respondents strongly or somewhat support the ballot initiative. Only 34% said they were opposed to it.
“No matter how much disinformation Republican lawmakers and anti-abortion extremists spread, Michigan voters stand firmly on the side of reproductive freedom,” Lonnie Scott, executive director of Progress Michigan, said in a statement. “Whatever the courts decide, Michigan can and should remain a place where people are empowered to make their own decisions about their reproductive health. Abortion access is a crucual part of that, and Michiganders will continue to fight for that fundamental human right.”
With public opinion on the side of abortion rights, Whitmer strikes a cautiously optimistic tone.
“The overwhelming majority support women’s reproductive rights,” Whitmer says. “And so whether it’s an issue that goes before the public, or it is this compelling legal argument we’re making in front of our Supreme Court, I expect the right outcome to prevail. But I’m not going to make any assumptions. We’re going to fight.”
GOP supports ban
Another route to protect abortion access is through the state Legislature. Through the years, Democrats have introduced bills that would repeal the 1931 ban, but the Republican majority has refused to bring the legislation to a vote.
On the federal level, the House narrowly approved legislation along party lines to enact abortion rights as law. Although Democrats have a thin majority in the Senate, they have been hindered by centrist Democrats, Republicans, and the filibuster, a procedural rule that requires 60 votes in the 100-member chamber to advance most legislation.
A lot is at stake. If the ban goes into effect, Michigan’s 27 abortion clinics spread across 13 counties would be forced to close. The U.S. Supreme Cout case could impact 2.2 million Michiganders between the ages of 15 and 49, according to the New York-based Guttmacher Institute, a pro-choice research group.
People have taken to the streets to protest the looming Supreme Court decision. The day after the leak, nearly 200 protesters turned out in Detroit to show their support for reproductive rights. The demonstration was organized by the Reproductive Rights Group of Michigan, a collective of independent metro Detroit activists and civil rights organizations.
The group also has several future protests planned as the decision of whether or not to overturn Roe v. Wade looms.
Traci Jo Rizzo, one of the group’s lead organizers, says the public demonstrations are not only about raising awareness but also building community.
“A movement in the streets is more effective than relying on elected officials,” she says. “It’s about personally protecting people since we don’t have laws to protect people. This is how we apply pressure and express the indignance and the flat-out refusal to be made essentially into property.”
Beyond marches, the Reproductive Rights Group of Michigan is working on finding ways to keep abortion clinics open and potentially providing safe escorts to clinics for abortion seekers.
“If you look at movements in the past, especially groups like the Black Panther Party, they were creating educational programs, newsletters, and community programs, and those are the things we would like to see move forward in the future,” Rizzo says.
While Rizzo says she has never personally had an abortion, she tells Metro Times many people close to her have.
“A lot of them simply could not, in this current society, afford to take care of another life, and while it’s hard to hear when people who didn’t have another choice sought abortions, it’s relieving to hear they were able to do so safely. It’s not just used as birth control like a lot of people think,” she says. “The idea of losing that freedom of choice and bodily autonomy is really scary for anybody who has a uterus.”
Dianne Feeley, another organizer for the Reproductive Rights Group of Michigan, has been on the front lines of activism for women’s rights since the late 1960s, before the Roe v. Wade decision in 1973. Her first demonstration was a picket line at the California State legislature in 1968.
“In 1973 when I was organizing at 34 years old, or even back in 1968, did I imagine this is where we would be in 2022? Absolutely not,” she tells Metro Times. “But if you look at history, it’s forward and backward. The vindictiveness and stupidity of the arguments may surprise me, but there are six anti-abortionists who are judges on the U.S. Supreme Court. We knew from the questions and discussion from the hearing in December how hostile the court was, so we weren’t surprised how the draft read when it was leaked.”
For Freeley, the fight around reproductive rights has always been an issue of access, and both she and Rizzo view anti-abortion laws as attacks rooted in racism and classism.
“This is a race struggle and a class struggle, because those who are most severely impacted are the poor and [people] who are Black and brown,” Rizzo says. “Unfortunately, the GOP, Supreme Court, and people making these decisions for the rest of us are very into traditionalism and they have benefited greatly in building this capitalist society by suppressing and oppressing large demographics.”
The danger of Roe being overturned is that it opens the doors for other decisions based on the right to liberty under the 14th amendment to come under scrutiny.
“It’s opening up the way to abolish other rights that we’ve been granted in the constitution such as interracial marriage and gay marriage, and that’s very alarming to me,” Rizzo says. “It’s a slippery slope that sets a standard that equal rights and protections aren’t going to be protected anymore outside the cis, white, male, capitalist patriarchy that’s going on.”
The best chance Michiganders have to fight against the state’s antiquated abortion ban, according to Freeley, is to get the Reproductive Freedom for All measure on the November ballot. That’s why she’s out at the Eastern Market almost every Saturday collecting signatures for the petition.
“People are pretty horrified,” she says. “I’ve been collecting these signatures for a week now and some people, I can’t even finish my spiel before they grab the pen and sign … What I like about petitions is they’re self-activation. We are not making demands on politicians, we’re doing it ourselves.”
Not enforcing the ban
Even if Michigan’s ban goes into effect immediately after the U.S. Supreme Court’s decision, not every prosecutor is willing to enforce it. In April, seven county prosecutors in Michigan — all Democrats — signed a pledge saying they would not pursue charges for violations of the 1931 law, which they called “unconstitutionally and dangerously vague.”
“We believe those laws are in conflict with the oath we took to support the United States and Michigan Constitutions, and to act in the best interest of the health and safety of our communities,” the seven prosecutors’ April 7 statement said. “We cannot and will not support criminalizing reproductive freedom or creating unsafe, untenable situations for health care providers and those who seek abortions in our communities.”
It added, “Instead, we will continue to dedicate our limited resources towards the prosecution of serious crimes and the pursuit of justice for all.”
The pledge was signed by Washtenaw County Prosecutor Eli Savit, Wayne County Prosecutor Kym Worthy, Oakland County Prosecutor Karen McDonald, Kalamazoo County Prosecutor Jeffrey Getting, Genesee County Prosecutor David Leyton, Ingham County Prosecutor Carol Siemon, and Marquette County Prosecutor Matthew Wiese.
The day after the Supreme Court’s draft opinion was leaked, Michigan Attorney General Dana Nessel said she would not prosecute anyone who violates the abortion ban.
“I’m not going to enforce the law, nor will I defend the law, which I believe is unconstitutional,” Nessel said.
A longtime battle
For Whitmer, reproductive rights have long been important. In 2013, as a state Senate minority leader, Whitmer blasted a proposed rider that would have prohibited insurers from including abortion coverage as a standard feature in health plans sold in Michigan, requiring women to purchase what critics called a separate “rape insurance” rider. In an emotional, unscripted moment on the state Senate floor, Whitmer revealed that she had been raped as a freshman at Michigan State University.
“Throughout my whole life and career in public service, I have been on the frontline to protect and advocate for women’s reproductive health and choices and rights,” she tells Metro Times.
Whitmer worries about the ban’s impact on the state.
“I think it’d be devastating for women in our state to have their bodily autonomy ripped away from them,” she says. “I think it would hurt our state’s economy. Right now, we hear lots of businesses who are looking for talent lament the fact that a lot of women left the workforce during the pandemic, what we called the ‘she-cession’ because it took such a disproportionate impact on women, and want to get women to a place where they can participate in this economy and in our workforce. You don’t do it by stripping them of their health care rights and their decisions around their bodies. And as we try to promote Michigan to the world, it will make our job a lot tougher to draw talented people into Michigan if when you get here, you’re not a full citizen with full rights over your own body.”
For now, Whitmer says, it’s an all-hands-on-deck moment, and the focus must be on protecting reproductive rights.
“It’s unbelievable that we’re in this moment, and yet, here we are,” Whitmer says. “So we have to fight. We have no choice.”