Whitmer: Michigan Legislature should repeal 1930s law banning abortion

Lansing — Democratic Gov. Gretchen Whitmer called on the GOP-controlled Michigan Legislature Tuesday to repeal a decades-old law that criminalizes abortion, contending the policy could be restored by an upcoming U.S. Supreme Court ruling.

Republicans control both the state House and Senate, and state Senate Majority Leader Mike Shirkey, R-Clarklake, quickly rejected the call for a repeal in a Tuesday statement.

Both sides of the debate are looking to the 2022 election, when every seat in the state Legislature will be on the ballot, as potentially pivotal when it comes to future policy on abortions in Michigan.

Whitmer issued the statement six days after the nation's High Court decided not to block a Texas policy that would ban most abortions in that state. There are more cases based on "equally extreme state laws awaiting action in the Supreme Court that would completely overturn Roe v. Wade," said Whitmer, referring to the 1973 decision that created a woman's right to have an abortion.

"In Michigan today, abortion is safe and legal, but we have an arcane law on the books from the 1930s banning abortion and criminalizing health care providers who offer comprehensive care and essential reproductive services," Whitmer said.

"Thankfully, that dangerous, outdated law is superseded by Roe v. Wade, but, if the U.S. Supreme Court overturns Roe, that Michigan law and others like it may go back into effect in dozens of states, disproportionately impacting Black and brown communities."

The governor said she will "stand in the way of any bills that seek to strip away fundamental rights from women or get in the way of doctors’ ability to do their jobs."

She called on the Legislature to approve a proposal sponsored by Sen. Erika Geiss, D-Taylor, that would repeal the 1931 law that makes it a felony to administer any medicine or substance or employ "any instrument" with the intent to "procure" a miscarriage.

But Shirkey said the Republican caucus would not advance the proposal by Geiss, who couldn't be reached Tuesday.

"The primary charge of any government or government official is to protect the life of the innocent," Shirkey said. "Michigan Senate Republicans will not waiver from this fundamental duty to protect the sanctity of life."

The 1931 law that bans abortions in Michigan has been effectively been in place since the 1840s, said Genevieve Marnon, legislative director of the anti-abortion group Right to Life of Michigan.

Michigan is one of eight states with such policies still on the books, she said.

It's possible that the U.S. Supreme Court could issue a ruling and Michigan could become an "abortion-free state" in less than a year, Marnon said.

"People who support abortion are seeing the handwriting on the wall," she said.

The Supreme Court’s 5-4 decision last week to let a Texas ban on most abortions remain in force — at least for now — prompted warnings from advocates in Michigan who noted the state has the 90-year-old ban on the books if Roe v. Wade is overturned.

The justices plan this fall to hear a major case from Mississippi, which wants to enforce an abortion ban after 15 weeks of pregnancy.

“Here in Michigan, we face an especially dangerous threat. Because we have a pre-Roe law banning abortion on the books, access to abortion in Michigan would be in danger if the Supreme Court overturns Roe v. Wade,” said Dr. Sarah Wallett, chief medical officer for Planned Parenthood of Michigan, in a statement.

Michigan Attorney General Dana Nessel, the state's top law enforcement official and a Democrat, said in 2019 that she would not enforce a state abortion ban if federal protections were overturned.

“I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy,” Nessel said at the time.

Marnon said the old Michigan law, outlawing abortions in most situations, would take full effect if Roe v. Wade were struck down. She cited a 1973 court case decided by the Michigan Supreme Court that said the Roe v. Wade decision required "exceptions" to the state law, which the court said had a "central purpose" of prohibiting all abortions except those required to preserve the health of the mother. 

"The (U.S.) Supreme Court now requires other exceptions," the Michigan Supreme Court found. "They can properly be read into the statutes to preserve their constitutionality."

But if Roe v. Wade were struck down and the Michigan law took effect again, at least one county prosecutor said he wouldn't enforce it.

Washtenaw County Prosecutor Eli Savit has said he won't enforce the longstanding Michigan law if Roe v. Wade were overturned. The law "must come off the books," said Savit, a first-term Democrat.

"As long as I hold office, we will never, ever prosecute any person for exercising reproductive freedom," he tweeted last week.

cmauger@detroitnews.com