Michigan Gov. Whitmer files lawsuit to overturn state's 1931-era abortion ban

LANSING, Mich. (FOX 2) - Michigan Gov. Gretchen Whitmer has asked the state Supreme Court to resolve whether the state's constitution protects a woman's right to an abortion.

Amid ongoing legal cases at the U.S. Supreme Court that challenge the law that legalized abortion across the U.S., Whitmer says she is filing a lawsuit that asks the court to recognize the constitutional right under the Due Process Clause of the Michigan Constitution.

While abortion remains legal at the federal level, a state statute passed in 1931 outlaws abortion without exceptions for rape or incest. While Roe V. Wade rendered the state law moot, challenges at the Supreme Court this year could see the law overturned. 

What happens next could have big implications for abortion procedures and their legality in Michigan.

"If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance—including in cases of rape and incest— and deprive Michigan women of the ability to make critical health care decisions for themselves. This is no longer theoretical: it is reality," Whitmer said in a statement. 

Whitmer says a possible return to the 1931-era ban would impact 2.2 million women in Michigan. 

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"That’s why I am filing a lawsuit and using my executive authority to urge the Michigan Supreme Court to immediately resolve whether Michigan’s state constitution protects the right to abortion," she added.

Several other states have already passed bills that criminalize the practice at certain stages of pregnancy. The U.S. Supreme Court, which has a 6-3 conservative majority, is set to hear arguments on those cases later this year. 

While the 1931 abortion ban was never repealed, the state Supreme Court did say in 1973 that the law was unenforceable after the federal high court said state bans on abortion violated the constitution.

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But the original ruling opening access to abortion may be repealed in a case concerning the state of Mississippi's new law that bans abortion after 15 weeks.  

In Whitmer's lawsuit, it seeks to protect abortion access under Michigan's Due Process Clause, which provides a right to privacy and bodily autonomy. The governor also argues it violates Michigan's Equal Protection Clause by banning a woman's equal rights.