GRAND RAPIDS, Mich. (WOOD) — With the U.S. Supreme Court overturning Roe v. Wade and throwing the issue of abortion back to the states, questions remain about what will happen with Michigan’s 1931 abortion ban. An expert says challenges to the ban will likely soon be decided one way or the other.
The law, which would criminalize performing abortions under most circumstances including cases of rape or incest, with the exception being cases in which the mother’s life in danger, has been dormant since Roe v. Wade was decided in 1973. On May 17, a Michigan Court of Claims judge filed a preliminary junction to stop the ban from being enforced. That came in response to a Planned Parenthood lawsuit seeking to block the ban and recognize the right to an abortion in the Michigan Constitution.
Now that Roe v. Wade has been overturned, Michael McDaniel, a professor at Western Michigan University Thomas M. Cooley Law School, said it’s time for Michigan’s courts to make a decision on the law.
“Because of the decision in Dobbs having been released, I think it absolutely is judiciable now,” McDaniel said. “It is a matter that should be considered by the courts in Michigan.”
Gov. Gretchen Whitmer has filed a separate lawsuit asking the Michigan Supreme Court to guarantee abortion rights. After the Dobbs decision was released last Friday, the governor filed a motion asking the court to “immediately” take up her lawsuit.
“We need to clarify that under Michigan law, access to abortion is not only legal, but constitutionally protected,” the governor said in a statement. “The urgency of the moment is clear — the Michigan court must act now.”
“There’s some pretty strong interest in having this decided as quickly as possible,” McDaniel said of Whitmer’s move. “I think she was absolutely correct to ask the Supreme Court to take it up immediately.”
While there are multiple lawsuits regarding the abortion ban, McDaniel expects a decision to be made on the governor’s case.
“To expedite the issue so we have the shortest period of time we have conflict in Michigan on this issue, to me, it only makes sense for the Michigan Supreme Court to accept the invitation from Gov. Whitmer to rule on the constitutionality of the 1931 law,” he said.
“Since we have a mechanism by which the Michigan Supreme Court can consider the case earlier than in the normal process, I believe we should do that for the citizens,” he added.
McDaniel said under Michigan court rules, the governor has the right to ask the court for an advisory ruling.
“The court rules expressly provide that the governor can seek a ruling of the Michigan Supreme Court on cases of certain merit where the constitutionality of a statute or an interpretation of a constitutional provision is at issue and will have a large effect,” he said.
Given past cases and the court rules, McDaniel said he has a “hard time believing” the court will “overlook that procedure.”
Despite this, McDaniel said it’s uncertain what will happen.
“We’re making somewhat educated guesses as to what we think should be the next steps,” he said. “We can’t say for certain … other than to say this needs to be resolved, let’s hope it’s done soon.”
McDaniel predicted that a decision will come “sooner rather than later.”
“In any of these cases, these are all matters of intense public interest,” McDaniel said. “I don’t just mean in terms of entertainment value. I mean in terms of how they can affect people’s lives in many different ways.”
With the U.S. Supreme Court ruling that there is no guaranteed right to an abortion in the U.S. Constitution, McDaniel said it’s time to determine if that’s the situation in Michigan.
“We need to know the scope of the Michigan constitutional rights and whether they’re greater than those under the U.S. Constitution,” he said.
Right to Life of Michigan and Michigan Catholic Conference are opposing Planned Parenthood’s lawsuit about the abortion ban.
“I think that the courts at whatever level are going to have to consider permitting other interested parties on the issue to join in and at least file briefs on these,” McDaniel said.
McDaniel said he expects “there will be a full hearing on both sides” and “every part will be represented.”
“I think that’s a very good thing for all of us,” he said.