(CNN) – Abortion rights advocates in Michigan are sounding the alarm over a restrictive abortion ban that passed in 1931 before the US Supreme Court’s landmark Roe v. Wade was introduced from 1973.
This law was enforced by the decision in Roe v. Wade voided, but it’s still on the state’s books.
Democratic Michigan Gov. Gretchen Whitmer and other proponents have said Michigan state’s nearly century-old law could go into effect if the Supreme Court ruled on Roe v. Wade repeals, making Michigan one of the most restrictive states when it comes to abortion access.
Hoping to avoid this, Whitmer is suing to prevent the law from going into effect.
The urgency for Michigan supporters to enact legal abortion safeguards was underscored last week after Politico reported on a Supreme Court majority vote that would knock down Roe versus Wade.
Meanwhile, Whitmer and the state’s Democratic Attorney General Dana Nessel, who has said she will not enforce the year-long abortion ban, are up for re-election in November — making the midterm elections all the more important for pro-choice advocates.
But Michigan isn’t the only state with a intact pre-Roe abortion law that legal experts say could be revived and enforced.
What does the Michigan law of 1931 say?
The 1931 statute, still included in the Michigan Criminal Code, states: “Any person who willfully (sic) administers to a pregnant woman any medication, drug, substance or thing, or uses any instrument or other means to do the Miscarrying such a woman” … is guilty of a crime.
There is an exception to the woman’s “preservation of life,” but it does not preclude rape or incest.
The law threatens abortion providers with jail terms, according to Michigan’s ACLU, which is representing Planned Parenthood of Michigan in a separate lawsuit challenging the law.
Why did the Michigan governor file a lawsuit?
Whitmer, who campaigns for abortion rights, filed a lawsuit last month to block enforcement of the state’s 1931 ban on abortion.
“Because if Roe is officially overturned by the Supreme Court — which may happen any day now — abortion could become illegal in Michigan in almost any circumstance, including in cases of rape and incest, under a 1931 statute prohibiting abortion in Michigan,” Whitmer said in a statement last week.
The governor’s lawsuit, filed in district court, names as defendants several district attorneys in her state who could potentially enforce the nearly century-old abortion ban.
With executive power, Whitmer also asked the state Supreme Court to review the case immediately, skipping the trial court and considering whether the state constitution guarantees the right to an abortion.
The state Supreme Court has yet to decide whether or not to hear the case.
If Whitmer’s lawsuit is successful, it could result in the state’s old ban on abortion being overturned, ensuring access to abortion for the state’s voters if Roe v. Wade is lifted.
Planned Parenthood of Michigan filed a lawsuit along with a Michigan abortion provider to block enforcement of the state’s 1931 ban on abortion. However, the lawsuit is against Nessel, who has said she would not defend or enforce the 1931 Act in court if Roe v. Wade be lifted.
The lawsuit names Nessel, the state’s chief law enforcement official, as a defendant, noting that she must provide legal advice to state agencies, including the department that can impose penalties on doctors, and oversee all county attorneys who enforce the state’s criminal statutes.
Are there other efforts to revise the law?
Michigan State Democrats are also trying to repeal the old abortion law through the legislative process, which will be difficult since Republicans control both houses of the legislature. Pro-abortion rights advocates in the state are also trying to push through a measure in the November vote that would amend the state’s constitution to guarantee abortion rights.
Wisconsin’s Pre-Roe Ban
Nearby Wisconsin also has an 1849 pre-Roe abortion ban on its books.
The law states that “any person, other than the mother, who willfully destroys the life of an unborn child is guilty of a Class H felony,” punishable by up to six years in prison and/or a $10,000 fine .
The law would also make it a Class E felony, punishable by up to 15 years in prison and/or a $50,000 fine, for “any person other than the mother” who causes the mother’s death or ” deliberately destroyed the mother”. life” of an “unborn fast child”.
The law would not apply to the mother and makes exceptions for abortions necessary for the life of the pregnant person. The law could be extended beyond abortion providers, according to Michelle Velasquez, director of legal representation for Planned Parenthood of Wisconsin.
Could Wisconsin law go into effect if Roe is repealed?
Anti-abortion groups in the state have said so, while pro-choice advocates have said otherwise.
“We have always firmly believed that the pre-Roe statute puts us in a strong position to defend life if Roe is overthrown,” Gracie Skogman, legislative director of the anti-abortion group Wisconsin Right to Life, told CNN.
Planned Parenthood of Wisconsin believes that another 1985 statute prohibiting abortions based on viability of the fetus would continue to regulate abortion and that the 1849 statute would not automatically take effect should Roe v. Wade will be lifted, Velasquez told CNN.
“But there’s also some uncertainty surrounding this issue,” Velasquez said, adding that “we can’t just ignore the risk of someone trying to enforce this law.” Should Roe v. If the law were to be repealed, Planned Parenthood would have to pause abortion until the law is clear, Velasquez said.
Like Michigan, Wisconsin has a Democratic governor, Tony Evers, who supports efforts to overturn the state’s 173-year-old criminal ban on abortion, and a Democratic attorney general, Josh Kaul, who has said he will not enforce the abortion law. Both Evers and Kaul are also up for re-election this year.
In a statement, Kaul said the “government will not divert our investigative or law enforcement resources to enforcing a draconian, 173-year-old abortion ban, barring exceptions for rape or incest, which has been held unconstitutional for two generations.”
However, Skogman says enforcement of the law will be up to local prosecutors.
Are other states challenging their abortion bans before Roe?
The majority of other pre-Roe v. Wade, which is still on the books, is unlikely to have the same recourse as Michigan or seek to repeal its old abortion laws, according to experts CNN spoke to.
In these states, Republicans control both chambers of the state Legislature and the Governor’s Mansion, pro-abortion GOP attorneys general, and conservative lawmakers who have recently passed other legislation restricting abortion pending Supreme Court ruling Restrict Roe.
Experts told CNN the bans could come into effect before Roe if Roe is lifted – but they’re unlikely to come into effect automatically, and the exact process of how they would do so is unclear.
In Michigan’s case, “there is at least a possibility that the law could be enforced directly after Roe was overturned because there is no court order,” law professor Rachel Rebouché, acting dean of Temple University School of Law, told CNN, adding, that many of these abortion laws before Roe were ruled unconstitutional by a court.
Attorneys general could begin enforcing those abortion laws before Roe, but they would have to issue an opinion or ask a court to overturn that ruling if a lawsuit had arisen, said Ingrid Duran, director of the National Right to Life Committee’s anti-abortion group state legislation.
Elizabeth Nash, the state policy analyst for the pro-abortion rights research group Guttmacher Institute, told CNN that a state’s most recent abortion ban is more likely to go into effect, rather than a new trial over an abortion ban before Roe from a century ago.
What about states with trigger laws?
Thirteen states have passed so-called trigger laws, which are abortion bans, which after Roe v. Wade were passed and were to come into effect when they were struck down.
In some cases, the law requires an official, such as an attorney general, to certify that Roe was struck down before the law can go into effect.
Some states like Oklahoma and Mississippi have passed trigger laws and still have pre-Roe abortion bans.
Oklahoma also passed a “heartbeat” law banning abortions after about six weeks, and a near-total ban on abortion criminalizing performing an abortion. And Mississippi’s 2018 law banning abortions after 15 weeks is at the center of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization litigation, which challenges Roe v. Wade precedent.
“If the court overrules Roe and allows states to ban abortion, states hostile to abortion rights — many of which have many different criminal statutes that are not enforced today related to abortion — we think that they essentially have to decide which law is deemed to be the means by which to criminalize or prohibit abortion in their state,” Elisabeth Smith, the director of state policy and advocacy for the Center for Reproductive Rights on abortion rights, told CNN.
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