Judge overrules 1931 Michigan abortion ban, November vote looms

A Michigan judge has struck down a long-dormant law that criminalized abortion. The Michigan Supreme Court will decide this week whether to add a constitutional amendment protecting abortion rights to the Nov. 8 ballot. 

Paul Sancya/AP
Abortion rights protesters attend a rally outside the state Capitol in Lansing, Michigan, in June, 2022, following the United States Supreme Court's decision to overturn Roe v. Wade. On Sept. 7, Judge Elizabeth Gleicher struck down Michigan's 1931 anti-abortion law.

A judge on Wednesday struck down Michigan’s 1931 anti-abortion law, months after suspending it, the latest development over abortion rights in a state where the issue is being argued in courtrooms and possibly at the ballot box.

The law, which was long dormant before the U.S. Supreme Court overturned Roe v. Wade in June, violates the Michigan Constitution, said Judge Elizabeth Gleicher.

“A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives – it denies them of their dignity,” Judge Gleicher of the Court of Claims wrote. “Michigan’s Constitution forbids this violation of due process.”

The decision comes as the Michigan Supreme Court is considering whether to place a proposed amendment on the Nov. 8 ballot that would add abortion rights to the state constitution. A Friday deadline is looming.

Supporters submitted more than 700,000 signatures, easily clearing the threshold. But a tie vote by the Board of State Canvassers over spacing issues on the petition has kept it off the ballot so far.

In the wake of the Supreme Court’s reversal of Roe, about half of U.S. states are expected to seek to restrict abortions, or have already done so, sparking a wave of litigation around the country.

The court’s decision resulted in the 1931 Michigan abortion ban going back into effect. But a state judge earlier this month blocked county prosecutors from enforcing the ban, as reported by Reuters. 

In the case handled by Judge Gleicher, the 1931 law makes it a crime to perform an abortion unless the mother’s life is in danger.

The judge said the law “compels motherhood” and prevents a woman from determining the “shape of her present and future life.”

The law “forces a pregnant woman to forgo her reproductive choices and to instead serve as ‘an involuntary vessel entitled to no more respect than other forms of collectively owned property,’” Judge Gleicher wrote, quoting constitutional scholar Laurence Tribe.

The law was suspended in May with an injunction, following a lawsuit by Planned Parenthood of Michigan. Judge Gleicher said her latest decision applies to all state and local prosecutors. An appeal by the Republican-controlled Legislature is possible.

“The House is reviewing the ruling,” spokesman Gideon D’Assandro said.

Judge Gleicher acknowledged in July that she has been a regular donor to Planned Parenthood and gave $1,000 to the 2018 campaigns of Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats who support abortion rights.

But that support wasn’t a reason to pass the case to another judge, said Judge Gleicher, who also serves as chief judge on the Michigan Court of Appeals.

“Judges are presumed to be unbiased and impartial,” she said.

In a separate lawsuit, Ms. Whitmer has repeatedly asked the state Supreme Court to bypass lower courts and settle the status of the 1931 law. The court hasn’t decided whether to intervene.

“With our rights still hanging by a thread, the Michigan Supreme Court needs to provide certainty,” Governor Whitmer said Wednesday.

Susan B. Anthony Pro-Life America, a national anti-abortion group, expressed “deep disappointment” with the ruling.

Planned Parenthood described Wednesday’s ruling as a “critical victory for abortion access,” as reported by Reuters. 

Additional material from Reuters was included in this report. 

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