A 1931 law may trigger an abortion ban in Michigan after Roe v Wade

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Could a 1931 law trigger an abortion ban in Michigan?

If Roe v. Wade is overturned, some states are poised to swing decisively hard toward restricting abortion or banning it entirely, while others are readying passable legislation to ensure continued protection of abortion rights.

Then there are states like Michigan that could fall either way. Currently, Michigan follows the limits imposed by Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, meaning that abortion is considered a constitutional right in the state. Today, there are clinics in 13 counties. But legal abortion wasn’t always available, and the long-running statute restricting abortion — made unenforceable only by Roe — could resurface as law if the pivotal case is overturned as it’s expected to be. That would change reproductive healthcare for 2.2 million Michigan women.

Policy: Don’t drink, cheat or have an abortion

In the early 20th century, as many states passed laws criminalizing anything from drinking alcohol to cheating on your spouse hit the books, Michigan’s state legislature passed a law banning most abortions.

The most recent version states that any attempts to administer substances “with intent to procure miscarriage” constitutes a felony, unless the substance was “necessary to preserve the life of such woman.”

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“I think part of the reason that we’re seeing Michigan take center-stage nationwide on abortion this year is because we have one of the strongest [pre-Roe v. Wade] abortion bans in the country,” Christen Pollo, spokeswoman for Citizens to Support MI Women and Children, told Grid.

Some experts worry that if the 1931 law statute does resurface, its vagueness offers too much room for bad-faith interpretations of the text.

“One of the problems is that it is such an old law that the terms in it are not well designed to address means by which women might have abortions today,” Mae Kuykendall, a law professor at Michigan State University, told Grid. “Of course, they couldn’t possibly have been anticipating things like the morning-after pill.”

She noted that around the same period the 1931 ban was enacted, Michigan passed other laws that were later deemed “sufficiently outdated” and have been repealed. “One of them apparently was that it was a crime to perform ‘The Star-Spangled Banner’ in a public venue if the group didn’t perform the whole thing,” she said.

The law was made inactive when the Supreme Court handed down Roe v. Wade in 1973, but news that today’s court is poised to overturn the precedent has made pro-abortion rights activists in the area fear the law could come back into effect.

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“The obstacles to essential healthcare will skyrocket for many women and people who can become pregnant,” Nicole Wells Stallworth, vice president for public advocacy for Planned Parenthood Advocates of Michigan, told Grid. “And for people of color, that will be exacerbated because of the structural racism in maternal healthcare that already exists.”

Her group had worried the old law would reemerge when Donald Trump was elected president in 2016. “That was around the time that we began to think about what we needed to do in order to protect abortion in Michigan,” she said.

So Planned Parenthood, the ACLU of Michigan and the progressive advocacy group Michigan Voices formed a coalition to think of ways to repeal the law. They decided to use direct democracy: In early March, the trio proposed a ballot initiative that would codify the right to abortion in the state’s constitution.

Wells Stallworth said they opted for a ballot measure rather than a law because it would be more permanent. “We decided that a constitutional amendment would be far more durable because it is not as susceptible to the legislature being able to change it,” she explained.

However, anti-abortion activists are staunchly against the proposal. Citizens to Support MI Women and Children, Right to Life of Michigan and the Michigan Catholic Conference all publicly criticized the amendment when it was announced.

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“[We] put on this coalition to oppose the petition,” Anna-Marie Visser, the director of communication and education at Right to Life of Michigan, told Grid. “We are opposed to it because we are against abortion.”

The amendment reads: “An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” Pollo fears that the ballot measure is too far-reaching and could have unintended legal consequences.

“Essentially any law that interferes with it upon the books would be overturned through this amendment, and it affects dozens of laws,” she said.

She argued that based on the language in the amendment, women would be allowed abortion through all nine months of pregnancy and repeal informed consent.

“They’ve done us as anti-abortion people a great service, frankly, with the sloppy language that they’ve chosen and how far-reaching this proposal is,” she told Grid. “Because I think it’s going to make it really easy to fight.”


Politics: Angling for support

Gov. Gretchen Whitmer of Michigan, a pro-abortion rights Democrat, has thrown herself into the fight, tweeting that she brought a lawsuit to overturn the early 20th century abortion ban.

“Abortion rights in Michigan are at stake,” the governor, who is up for reelection this November, continued, “and I promise I will never stop fighting like hell to protect every [Michigander’s] right to choose.” Gov. Whitmer did not immediately return a request for comment.

Gov. Whitmer’s suit was filed in early April alongside a similar complaint from Planned Parenthood of Michigan. Both asked the Michigan Supreme Court to deem abortion constitutional in the state. She also filed a lawsuit in state court to block the state attorney general from enforcing the abortion ban from 1931.

The Michigan Legislature is sharply divided along party lines. While Michigan has a Democratic governor, attorney general and Democratic majority in the state Supreme Court, there are currently 55 Republicans to 51 Democrats in Michigan’s state Legislature and 22 Republicans to 16 Democrats in the state Senate. And neither party is assuming the abortion battle will go their way.

In the wake of the leaked Dobbs v. Jackson Women’s Health opinion, Michigan Republicans passed budget plans to block state and federal funding from abortion providers in the state. They’ve also set aside $750,000 to defend the abortion ban.

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“The Republicans have a fairly sizable majority of the legislature, and they are strongly in the camp of anti-choice,” Kuykendall told Grid.

Residents of the state tend to be more liberal on the issue than the legislature. Polls spanning back to 2018 found 50-58 percent of Michiganders considered themselves pro-abortion rights supporters while 34-44 percent considered themselves anti-abortion advocates.

The ballot measure needs 425,059 signatures from registered Michigan voters to land on the ballot this November, and then they send the petition to Michigan’s Board of State Canvassers for certification. The leaked Dobbs opinion has given the activists some momentum.

“Since the news broke on Tuesday, we have had more than 17,000 new people sign up to circulate petitions,” Wells Stallworth told Grid. “And that number continues to grow.”

Meanwhile, anti-abortion groups and the state legislature are prepping to defend the abortion ban should the Supreme Court reaffirm it once again. “I think that this is an issue that we can no longer afford to sit on the sidelines about,” Pollo said. “There really isn’t a middle ground on abortion.”

Thanks to Alicia Benjamin for copy editing this article.

  • Kaila Philo
    Kaila Philo

    Government and Political Institutions Reporter

    Kaila Philo is a reporter at Grid where she focuses on the U.S. government and political institutions.