The Michigan Supreme Court Has The Power To Protect Abortion Right Now, So Why Is It Waiting?
Governor Whitmer’s case possesses the potential to provide a playbook for other states to fight zombie laws across the nation.
Rarely have three letters and five numbers belied so many horrors.
MCL 750.14 is a 1931 Michigan abortion law (which itself stems from an 1846 abortion ban), that makes it a felony to procure a miscarriage, unless necessary to “preserve life.” (More on the dangerous vagaries in that caveat in a minute.) There is no exception for rape or incest.
Michigan Governor Gretchen Whitmer recognized the risk of allowing MCL 750.14 to stay on the books, so she did something unusual. She challenged the law in court. In fact, she sued the prosecuting attorneys in all 13 Michigan counties where abortion providers operate as they are the ones who could enforce the 1931 law, and press charges against abortion providers, if Roe is overturned and that law rears its head again.
Governor Whitmer also invoked a special authority to send the lawsuit directly to the Michigan Supreme Court — rather than beginning at the trial court level — and on May 20th, the Michigan Supreme Court issued an order requesting that the parties respond to five clarifying questions. (This doesn’t mean they’ll take up the case, but it’s optimistic.)
The coalition of Prosecuting Attorneys — including yours truly at Public Rights Project, we’re representing Washtenaw County Prosecutor Eli Savit, who is committed to protecting abortion access — must file their responses by June 8th.
This case is crucial as it possesses the potential to provide a playbook for other states to fight trigger and zombie laws across the nation if, as expected, SCOTUS overturns Roe in the coming days.
“Taking criminalization off the table is huge for people both now and in the future,” says PRP Founder Jill Habig. “Even if every single prosecutor in the state commits to not prosecuting, there’s a 6-year statute of limitations on the MI law, so someone who gets an abortion this summer could be prosecuted by a new DA or AG who hasn’t even been elected yet.”
Savit is the elected prosecutor in what is widely considered to be the most progressive county in Michigan; he is one of 7 Democratic prosecutors named in the Governor’s lawsuit.
“I’m the elected prosecutor for a county of nearly 400,000 people, with a huge population of people of reproductive age (bolstered by our two major universities). I have an obligation to do everything I can to protect the health, safety, and wellbeing of my constituents, but I’m also a person who lives in the real world.
People are scared that their bodily autonomy is going to be taken away by the State. That they’ll be robbed of the opportunity to chart their own life’s path. That the exercise of a right that was thought to be sacrosanct will be criminalized in a matter of days.”
Savit says there are two important strands to consider in Whitmer’s case — the fact that regardless of what the US Supreme Court decides constitutionality, states can always independently provide that right, and second, as Roe can be overturned any day now, the Michigan Supreme Court needs to respond to the urgency that Whitmer has set into motion.
Whitmer fast-tracking the lawsuit “is highly unusual” says Savit, “but these are unprecedented times. I’m strongly supportive of the case that she’s brought, and it’s hard for me to imagine a circumstance in which a lawsuit of this kind would be more justified.”
On May 17th, in a parallel suit brought by Planned Parenthood, a Michigan judge issued a preliminary injunction prohibiting enforcement of the old 1931 law.
That means — until and unless that injunction is lifted — abortion access will remain in Michigan, even after a potential overruling of Roe.
One of the most disturbing elements of MCL 750.14 is the language around abortion being legal if, and only if, it “preserves life.” This puts doctors in an impossible position of playing jury and judge, determining just how sure they need to be they’re saving someone’s life, or else contend with the possibility of going to jail themselves for aiding an abortion.
“Pregnancy demands intense work from all organ systems, which the bodies of critically ill people often cannot accommodate,” Dr. Lisa H. Harris recently wrote in the New England Journal of Medicine. “Ending a pregnancy is an effort to save them…Beyond such cases, however, it’s unclear what, precisely, ‘lifesaving’ means. What does the risk of death have to be, and how imminent must it be?”
Savit asks us to consider just how much “chaos, arbitrariness, and uncertainty” this law would cause if it springs back to life.
“What if a woman is diagnosed with cancer and her choice is between chemotherapy (which can damage the fetus) or carrying the pregnancy to term (but the delay would mean the cancer could metastasize)? Is an abortion legal in those circumstances? What if it’s a recurrence of cancer that could cause death in, say, 2 years? Does that qualify as ‘necessary to preserve life,’ or does a patient have to face the risk of dying in childbirth for an abortion to be legal under the 1931 law?
Literally nobody knows the answer to these questions, precisely because we have an outdated and archaic law that has not been interpreted by courts for a half-century.”
Savit says he’s fighting for Michigan because it’s his duty to do so, but this infringement on people’s humanity and agency is personal.
“I’m a human being. And I can’t help but think about the other people in my life — friends, family members, coworkers, and colleagues who these issues would dramatically affect. The health and safety of thousands of people in my county is on the line. And I’ll be damned if I’m not going to do everything within my power to help protect that.”
GET INVOLVED: Michigan Reproductive Freedom Ballot Initiative
“This initiative is far and away the best thing ordinary people can do right now to secure the long-term right to an abortion in our state, and I strongly encourage everyone to get involved. It seeks to place the power directly in the People’s hands to change the constitution and protect the right to an abortion in Michigan.” — ELI SAVIT