LANSING, Mich. (AP) — Gov. Gretchen Whitmer filed a lawsuit Thursday asking a Michigan court to recognize the right to get an abortion under the state constitution and to overturn a 176-year-old ban in the state that might take effect again if the U.S. Supreme Court’s landmark Roe v. Wade ruling is vacated.

The Democratic governor’s preemptive lawsuit, which was filed in Oakland County against prosecutors in 13 counties with an abortion clinic, came as the U.S. Supreme Court’s conservative majority considers allowing states to ban abortion much earlier in pregnancy and potentially overturning the right. The American Civil Liberties Union, Planned Parenthood of Michigan and its chief medical officer filed a similar suit in the state Court of Claims to block enforcement of the 1931 law, which dates to an 1846 ban.

Whitmer, who is up for reelection this year, was expected to request that the Michigan Supreme Court quickly take her case rather than let it wind through lower trial and appellate courts. A favorable decision could enable abortions to continue in Michigan after the federal high court rules.

“It was important for us to take action now, to ensure that women and providers across the state of Michigan know whether abortions will still be available in the state because it impacts their lives and our health care providers’ practices. It’s crucial that we take this action now to secure and ensure that the Michigan Constitution protects this right that we have had available for 49 years,” the governor told The Associated Press, saying nearly 2.2 million women may lose access to a safe, legal medical procedure.

After the lawsuits were filed, Attorney General Nessel said she wants to make it clear she will not be using the power of her office to defend Michigan’s 1931 statute to criminalizing abortions.

Nessel also said abortion is an essential component of women’s health care.

“As I see it, it is my job, my obligation and my solemn duty as attorney general to protect the health, safety and welfare of the women of Michigan,” said Nessel on a press call Thursday morning.

Nessel added that a ban on abortion would also mean women would be forced to seek abortion through illegal means.

“Just as I wouldn’t want a prosecutor to make a decision for me, I refuse to make it for others. This law is dangerous, this law strips women of their dignity and bodily autonomy and in some cases of their lives,” said Nessel. 

Michigan is among eight states with an unenforced abortion ban that was enacted before the 1973 Roe decision legalized abortion nationwide. States on both sides of the abortion issue have been taking various steps to prepare for Roe being eroded or rescinded, including making it a crime to perform an abortion and banning legal action against people who aid or receive an abortion.

Michigan’s law makes it a felony to use an instrument or administer any substance with the intent “to procure the miscarriage” of a woman unless necessary to preserve her life.

Whitmer wants the Michigan Supreme Court to declare a state constitutional right to abortion and to strike down the 1931 law, which could go back into effect if Roe is overturned or weakened. The lawsuit argues that the law is invalid under the due process and equal protection clauses of the state constitution.

Michigan may soon be left with a near-total ban without even exceptions for rape and incest — “one of the most extreme laws in the country,” Whitmer told the AP. Her call to repeal the law has gone nowhere in the Republican-controlled Legislature.

The state high court has four Democratic and three Republican justices.

Whitmer asked that the court intervene in part to avoid legal uncertainty when the federal high court issues its ruling on Mississippi’s ban on abortions after 15 weeks of pregnancy. Should Roe be overruled or curtailed, she wrote, “health care providers may feel constrained to restrict access to abortion services to avoid potential criminal liability.”

The complaint says that although the Michigan Supreme Court in 1973 ruled that Roe limited the effect of the state ban, the right to abortion has been undermined over 50 years of litigation in federal courts. The state’s high court has not said whether the state constitution protects the right. The Michigan Court of Appeals ruled in 1997 that there is no state constitutional right to abortion — one reason the Supreme Court should step in immediately because it is binding on lower courts, according to Whitmer.

The lawsuit points to “substantial ambiguity” about what the state ban prohibits.

Dr. Sarah Wallett, a Michigan abortion provider, is a plaintiff in the other lawsuit filed by Planned Parenthood and ACLU of Michigan. She said in the release Michigan residents deserve to have access to the health care she provides.

“I’m an abortion provider, and the care my colleagues and I provide every day to our patients is essential to their ability to lead the lives they choose,” she said in the release. “I joined this suit because it is fundamental to my oath as a physician to do no harm – and being forced to deny abortion care and violating the basic rights of my patients would cause them immense, irreversible harm.”

Whitmer was criticized by groups that oppose abortion rights. Right to Life of Michigan President Barbara Listing called the suit “frivolous.”

“While the legality of abortion is contingent upon democratic structures, it is unfortunate that the judicial branch is being used to try to invalidate a long-standing policy approved by elected representatives and left untouched by the Legislature for nearly a century since,” said Rebecca Mastee, a policy advocate at the Michigan Catholic Conference.

Abortion rights advocates have launched a ballot drive to enshrine the abortion rights in the state constitution, but they would need about 425,000 voter signatures to get the initiative on the November ballot.

Also Thursday, seven Democratic county prosecutors who were named in Whitmer’s lawsuit pledged to not enforce the anti-abortion law in Wayne, Oakland, Genesee, Washtenaw, Ingham, Kalamazoo and Marquette counties. The other six elected prosecutors who were sued are Republicans.

The defendant in the Planned Parenthood case is Michigan Attorney General Dana Nessel, a Democrat who has long said she would not enforce the ban. She said her office will not defend the law unless it is ordered to be a court. Other parties that support the law can seek to intervene, she said.


Associated Press writer Corey Williams in West Bloomfield, Michigan, and video journalist Sharon Johnson in Atlanta contributed to this report. News 8 web staff also contributed to this report.