Michigan governor files lawsuit to fight ‘real and present danger’ to abortion access in her state

Whitmer filed the lawsuit Thursday morning in Oakland County, naming 13 elected county prosecutors located in counties with abortion clinics as defendants, according to a Whitmer official. The governor is suing to challenge the state’s abortion ban, which was put in place in 1931 but is not enforced due to Roe v. Wade, according to the Whitmer official.

“We’ve got to take this current assault on women’s rights seriously and use every tool we have to fight back. This is not just a theoretical risk. This is a real and present danger. And that’s why I filed this lawsuit,” Whitmer told Hunt on “The Source with Kasie Hunt.”

Her office argues that the law is unconstitutional and violates the state’s due process clause that provides a right to privacy and bodily autonomy and also violates Michigan’s equal protection clause. The official said if Roe v. Wade is overturned and the 1931 law goes into effect, Michigan would have one of the most extreme abortion laws in the country.

The official said the goal of the lawsuit is to obtain more clarity about what the state’s Supreme Court thinks about the 1931 abortion law and the legality of abortion in Michigan ahead of Roe v. Wade potentially being struck down. The reason the county prosecutors are named as defendants is because those prosecutors would be the ones enforcing the abortion laws — including a potential abortion ban — and they represent counties that have abortion clinics, the official said.

The governor plans to use her executive authority to ask the state’s Supreme Court to recognize a right to an abortion under the state’s constitution. Whitmer is aiming for the court to strike down the law banning abortion in the state, which the official says could spring back into effect if Roe v. Wade is ultimately overturned by the US Supreme Court.

The moves by the Democrat, who is up for reelection in 2022, come ahead of a key US Supreme Court ruling that could significantly roll back abortion rights. The nation’s highest court appears aimed to uphold a Mississippi law that bans abortion after 15 weeks.

The case is seen as a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide. The court’s ruling could be the most significant abortion rights ruling in decades.

If the Supreme Court upholds the Mississippi abortion law, access to abortion could be banned or restricted in many Republican-led states across the country. Abortion access could be elevated to a top campaign issue across the country just months ahead of November’s midterm elections.

Whitmer told Hunt that if the US Supreme Court undermines or overturns Roe v. Wade, “Michigan overnight could be a state that has one of the most extreme laws on the books.”

The Biden administration has urged the Supreme Court to uphold Roe v. Wade — the landmark case that legalizes abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy — and to invalidate the Mississippi law.
President Joe Biden has said his administration is “deeply committed” to a woman’s right to have an abortion and that his administration would “protect and defend that right.” In September, Biden blasted a Texas state law that bans abortion after as early as six weeks into pregnancy as “extreme” and said it “blatantly violates” Roe v. Wade.

The Whitmer official said several attorneys from the state’s department of the attorney general have been placed behind a conflict wall and will represent the governor, and that attorneys from the law firm WilmerHale have also offered their services pro bono to aid in the governor’s representation.

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