Draft opinion jolts Michigan, where abortion ban is on books

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FILE - Michigan Gov. Gretchen Whitmer attends an event with President Joe Biden in the South Court Auditorium on the White House campus, Wednesday, March 9, 2022. A draft opinion that suggests the U.S. Supreme Court could be poised tooverturn the landmark Roe v. Wade decisionreverberated in political battleground Michigan. Attention quickly turned to the courts, where Democratic Gov. Gretchen Whitmer and Planned Parenthood anticipating the ruling filed lawsuitsless than a month ago seeking to invalidate the 1931 law that remains on the books. (AP Photo/Patrick Semansky, File)

LANSING, Mich. – A draft U.S. Supreme Court opinion that would overturn the landmark Roe v. Wade decision reverberated in political battleground Michigan, where a near-total abortion ban may take effect again after nearly 50 years and is unlikely to be changed by the Republican-led Legislature.

There is increased attention in Michigan on the state courts, where Democratic Gov. Gretchen Whitmer and Planned Parenthood — anticipating the ruling — filed lawsuits less than a month ago seeking to invalidate the dormant 1931 law that remains on the books. The governor wants the Michigan Supreme Court to declare a constitutional right to abortion by recognizing the rights to privacy and bodily integrity. She argues the law is invalid under the due process and equal protection clauses of the state constitution.

The development also put a focus on the November election, when the governor and legislators are up for reelection and voters may decide whether to enshrine abortion rights in the state constitution.

“Women are waking up this morning feeling hopeless; but we can't go back. I'm more motivated than ever to keep fighting like hell to ensure abortion remains safe and accessible in Michigan," Whitmer tweeted.

The leaked draft opinion published Monday by Politico in effect states there is no constitutional right to abortion services and would allow individual states to more heavily regulate or outright ban the procedure. A Supreme Court statement emphasized that the draft is not the justices’ final word.

Michigan's pre-Roe law, which followed a similar 1846 law, makes it a four-year felony to use an instrument or administer any substance with the intent to abort a fetus unless necessary to preserve the woman's life. It has no exceptions in cases of rape and incest, and Whitmer has said Michigan would have “one of the most extreme laws in the country.”

Republican legislators have blocked Democrats' efforts to repeal the law. The state's Democratic attorney general, Dana Nessel, and Democratic prosecutors in seven counties with abortion clinics in turn have pledged to not enforce it. The six other counties with clinics have Republican prosecutors.

Nessel said she believes the pre-Roe ban would immediately go into effect if Roe is overturned. She warned that would have a “chilling effect” on doctors in part because prosecutors who favor abortion rights may be succeeded by those who do not. She said the law also could be interpreted to criminalize self-induced abortions.

“It’s a very odd set of circumstances. Generally speaking throughout history, we gain rights. We don’t normally lose them,” she said.

All 10 Republican candidates vying to challenge Whitmer are anti-abortion. Many oppose it except to protect the woman's life, aligning with Right to Life of Michigan's position. At least two, business owner Kevin Rinke and State Police Capt. Michael Brown, favor additional exceptions such as for rape and incest.

“If true, I believe the Supreme Court acted properly by letting the people of Michigan make their own decision,” Rinke tweeted. “As governor, I will ensure that Michigan is a state that respects the sanctity of life.”

Another candidate, conservative former news host Tudor Dixon, issued a lengthy statement saying she is “pro-life” and telling women they do not have to “pick and choose” between having a baby.

“Life is winning!” chiropractor Garrett Soldano tweeted.

For abortion-rights supporters, the pending high court decision also made clear the urgency of a ballot drive they announced in January. The constitutional amendment would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control.

The Reproductive Freedom for All committee needs to collect about 425,000 valid voter signatures by July 11 to make the November ballot. The measure would become law if voters approved it.

In Michigan, 70% of voters in the 2020 presidential election said the Supreme Court should leave Roe v. Wade as is and 27% said it should overturn the decision, according to AP VoteCast. That was similar to opinions among voters nationwide.

Few voters in Michigan, 12%, said abortion in general should be illegal in all cases. Many, 28%, said abortion should be illegal in most cases, but a majority — 59% — said abortion in general should be legal in all or most cases.

“The unfortunate reality is that our fate is now in our own hands; the U.S. Supreme Court will not protect us," said Nicole Wells Stallworth, executive director of Planned Parenthood Advocates of Michigan. “Our campaign to enshrine right to an abortion in the Michigan Constitution is essential, and we must remain vigilant and energized to see it through to the finish because the clock is ticking.”

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Associated Press polling reporter Hannah Fingerhut contributed to this report.

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The story has been updated to correct that it has been nearly 50 years since Michigan had a near-total abortion ban.

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Follow David Eggert at https://twitter.com/DavidEggert00