Michigan is one of more than a dozen states with an abortion ban on the books that was unenforceable following the 1973 Roe v. Wade decision. But that old law is not automatically back in force as a result of Friday’s U.S. Supreme Court decision in the Dobbs v. Jackson case which overturned Roe.
The dormant Michigan law dates back to 1931 and it says abortion providers can be prosecuted —with exceptions only to save the life of a pregnant person. The U.S. Supreme Court decision striking down Roe takes effect in one week, but there is a hold on that in Michigan under a preliminary injunction issued by a Michigan Court of Claims judge.
“That means in all 83 counties, abortion remains legal as of right now,” said Michigan Attorney General Dana Nessel. “Doctors, patients can go about their business exactly as they would have prior to this Dobbs ruling being issued.”
Court of Claims Judge Elizabeth Gleicher, a former abortion rights attorney, ruled a lawsuit filed by Planned Parenthood Affiliates of Michigan to keep abortion legal is likely to succeed and issued the injunction in case Roe is overturned.
Planned Parenthood’s Sarah Wallet says that’s why the organization’s clinics remain open and are accepting patients.
“Here in Michigan, we’re still providing care, and I am working with our expert team of doctors, nurses and other healthcare professionals to ensure we can provide care to as many patients as possible,” she said. “We are not going anywhere.”
But there’s no way of knowing how long clinics will be shielded from legal action.
Attorney David Kallman represents prosecutors ordered by the Court of Claims judge to refrain from filing criminal charges against abortion providers. He’s filed a motion to have the Michigan Court of Appeals take over the case and lift the injunction.
“Our position right now is the laws are now back in place, and so, since that’s the case, then it’s up to county prosecutors,” he told Michigan Public Radio. “They have prosecutorial discretion. They can choose whether to prosecute or not prosecute.”
Several county prosecutors whose jurisdictions have abortion clinics have said they would not take on cases related to the ban. That group includes Ingham County Prosecutor Carol Siemon.
In addition, there’s a Michigan Supreme Court case filed by Governor Gretchen Whitmer. She has asked the court to rule that privacy and equal protection clauses in the state constitution also protect abortion rights.
Her attorney filed a motion asking the court to accelerate its consideration of her request. But the Supreme Court is not required to accept the request or even make any decision at all.
There’s also a political track as a ballot drive collects signatures on a petition to put abortion rights protections in the Michigan Constitution. If the “Reproductive Freedom for All” initiative makes it to the ballot and is approved by voters, it would preempt the 1931 state law.
Sommer Foster is the co-executive director of the advocacy group Michigan Voices. She says the signature gathering is on schedule.
"We are collecting signatures as we speak. The number changes every day, but I can tell you that we are on track to get this on the ballot and we will collect over and above 425,000 signatures knowing that there will be challenges."
Abortion has already become a focus of this year’s election season.
“That is clearly in the hands of Michiganders as they look both towards a ballot initiative that is working to being on the ballot to guarantee that right as well as in the election of representatives,” said Michigan House Democratic Leader Donna Lasinski.
Republican leaders in Lansing have made clear there’s little interest on the GOP side of the aisle to change the law.
“I don’t see anything that needs to be changed right now,” said Republican Representative Joseph Bellino. “I’m sure future legislatures will look at the law and the (U.S.) Supreme Court gave state legislators the right to do what their people want and that’s what Michigan people will do.”
A handful of GOP lawmakers have called for tougher penalties for abortion providers. Meanwhile, an anti-abortion group Right to Life of Michigan cites the ballot initiative and the court cases for its work to continue.
Anna Visser is Communications Director for Right to Life Michigan.
"We have to keep fighting," said Communications Director for the group, Anna Visser. "It's going to be a constant battle to make sure that Michigan stays an abortion-free state. It is not over yet."
Michigan Right to Life Legislative Director Genevieve Marnon and Safe the 1 founder Rebecca Kiessling
The legal cases, ballot drive, and election year arguments are proof that just because the US Supreme Court has made a ruling, it’s not the final decision on abortion rights in Michigan.
Russ McNamara, Tracy Samilton, Sophia Saliby and Colin Jackson contributed to this report.