Michigan judge halts enforcement of state's pre-Roe abortion ban

Washington — A Michigan judge on Tuesday temporarily blocked enforcement of the state's near-century old ban on abortions should the Supreme Court overrule its landmark decision that established the right to an abortion nationwide.

In a 27-page order in a case brought by Planned Parenthood of Michigan and an abortion provider, Judge Elizabeth Gleicher of the Michigan Court of Claims granted the organization's request for a preliminary injunction barring enforcement of the law, which was enacted in 1931 and makes abortion a felony in most instances.

The ban has been dormant since the Supreme Court's 1973 decision in Roe v. Wade, which legalized abortion nationwide, but would go back into effect — making abortion in Michigan illegal — if the high court strikes down Roe, which it appears likely to do in the coming weeks. Gleicher's order, though, suspends enforcement of the law if the Supreme Court overrules its decision in Roe.

In her order, Gleicher wrote there is a "substantial likelihood" that the ban on abortion violates Michigan's constitution, and said there is a "strong likelihood" that Planned Parenthood will prevail on the merits of its challenge to the decades-old measure under the state constitution.

"After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy," the judge said. "From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment."

Gleicher said that if the Supreme Court reverses Roe, Planned Parenthood and its patients face a "serious danger of irreparable harm" if kept from accessing abortion services, adding "the inability to exercise a fundamental constitutional right inherently constitutes irreparable harm."

"Forced pregnancy, and the concomitant compulsion to endure medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions," the judge said in her decision. "If a woman's right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth."

Gov. Gretchen Whitmer praised the court's decision, calling it an "important victory" for Michigan residents.

"The opinion from the Michigan Court of Claims is clear and sends the message that Michigan's 1931 law banning abortion, even in cases of rape or incest, should not go into effect even if Roe is overturned," she said in a statement. "It will help ensure Michigan remains a place where women have freedom and control over their own bodies."

Michigan is one of nine states with abortion bans that pre-date Roe and were never repealed. In anticipation of the Supreme Court's decision in a case involving a Mississippi law banning abortions after 15 weeks of pregnancy, in which the court is considering whether to overturn its past abortion decisions, Planned Parenthood of Michigan and Dr. Sarah Wallett, an abortion provider in the state, filed the challenge to the state's pre-Roe abortion ban in April seeking to block enforcement of the measure. The organization argued Michigan's law is unconstitutionally vague and violates the state's constitution.

While the suit named Michigan Attorney General Dana Nessel as a defendant, Nessel, a supporter of abortion rights, said she would not prosecute women seeking abortions or their doctors if the Supreme Court were to overturn Roe.

Abortion rights advocates have been worried the Supreme Court's 6-3 conservative majority would use the Mississippi case as the vehicle to overturn Roe and Planned Parenthood v. Casey, the 1991 decision that reaffirmed Roe's central holding and prohibited states from enacting regulations that impose an undue burden on the right to an abortion before viability.

That possibility became more likely earlier this month with the leak of a draft Supreme Court opinion that indicated a majority of the justices had voted to strike down Roe. The draft was written by Justice Samuel Alito and circulated among the justices in February, and the Supreme Court confirmed its authenticity. It clarified, though, that the document did not represent a decision by the court or the final position of its members on the issues in the Mississippi case.

The decision by the Supreme Court is expected in the coming weeks, as the court is set to wrap up its term by late June or early July.