Michigan abortion law: What you should know if SCOTUS overturns Roe
With a 91-year-old state law making abortion illegal, two state supreme court cases pending on the issue, and an abortion rights measure being pushed for the November ballot, Michigan is on the front lines in the fight over a woman’s right to choose. (Linda Parton / Shutterstock.com)
by Ron French (Bridge Michigan)
With Roe v. Wade poised to be overturned, would abortion once again be illegal in Michigan? The quick answer is that it appears so, but with a ton of caveats.
Bridge Michigan answers your questions about what such a ruling would mean for the state.
A draft of a Supreme Court decision obtained by Politico Monday reveals the court is on the verge of overturning Roe, the 1973 ruling that recognized a woman’s right to an abortion under the U.S. Constitution. Chief Justice John Roberts confirmed Tuesday that the draft was authentic, but emphasized that changes could be made before the official ruling is released, probably in June.
If that official ruling follows the legal arguments in the draft — authored by Samuel Alito and joined by four other conservative justices on the nine-judge court — the legality of abortion would be up to individual states.
Under a 1931 law that would be revived should Roe fall, Michigan would be one of nine states with preexisting bans on abortion. Thirteen states have post-Roe bans that would go into effect if the ruling is overturned, with additional states having strict restrictions. But there are several roadblocks to the state enforcing that law.
Here’s what we know now:
Are abortions still legal in Michigan?
Yes, for now. The document leaked to the media Monday is a draft written in February and circulated among the justices, as drafts routinely are. The court’s ultimate ruling isn’t expected until June. Michigan clinics that provide abortion services and doctors prescribing abortion pills can continue to do so for now.
If it’s just a draft, might the Supreme Court ruling change?
Drafts can, and do, often change, and justices routinely join or withdraw from a particular opinion as legal arguments evolve. But one of the five conservative justices who signed on to the draft would need to switch sides (unlikely), and Chief Justice John Roberts, whose vote was not included in the draft, would also have to side with the more liberal justices. Roberts is considered a conservative, but he is also an institutionalist and may be reluctant to overturn what many scholars considered to be settled law.
If the Supreme Court strikes down Roe, what happens in Michigan?
Michigan has had laws on the books since 1846 criminalizing abortion. The Michigan law, as revised in 1931, would make it a felony for a medical provider to perform an abortion unless it is necessary to preserve the life of the mother. The law also makes it a misdemeanor to sell abortion drugs in Michigan.
That law has been unenforceable since Roe, but was never specifically repealed and likely would be operational again if the Supreme Court overturns its 1973 precedent.
Attorney General Dana Nessel says she wouldn’t enforce the 1931 law. Does that mean abortion clinics would stay open?
Not necessarily. On Tuesday, Planned Parenthood of Michigan spokesperson Ashlea Phenicie said the organization’s clinics “follow all state and federal laws,” telling Bridge that Michigan clinics would be in a “difficult position“ if Roe is overturned.
The upshot: Even if Michigan’s Democratic attorney general says she won’t enforce the 1931 state law, it’s not clear that clinics will take that chance and stay open.
Local prosecutors could decide on their own to enforce the 1931 law. Several clinics that provide abortion services—in Macomb, Jackson, Emmet, and Grand Traverse counties—are in politically conservative counties. Nessel acknowledged Tuesday that her office has no ability to prevent local officials from enforcing the 1931 law.
How many abortion clinics are there now in Michigan, and where are they?
There are 27 clinics that provide abortion services in Michigan, located in 13 counties, mostly in the lower parts of Michigan, though there is a clinic in Petoskey and in Marquette in the Upper Peninsula.
How many abortions are performed in Michigan?
A total of 29,669 induced abortions were reported in Michigan in 2020, according to state data, which was an 8.5% increase from the 27,339 abortions reported in 2019, but a roughly 40% decrease since 1987 (the year with the largest recorded number of abortions).
In 2020, there were 15.8 abortions per 1,000 Michigan women age 15–44; that’s up from a decade ago, when, in 2000, there were 12.4 abortions per 1,000 women.
Who gets abortions?
The age of women getting abortions in Michigan has increased dramatically since 1985, according to state data. Then, 31% of abortions were among women under age 20, compared to 8% in 2020. By comparison, the share of Michigan abortions among women over the age of 30 increased from 16% to 32%.
Among women who had abortions in 2020, 85% were unmarried, 67% had at least one previous pregnancy taken to full-term, and 49% had at least one previous abortion.
What do Michigan residents think of abortion rights?
Polls in Michigan have shown a majority of residents consider themselves pro-abortion rights. Nationwide, about 60% of Americans say abortion should be legal in most circumstances, a level that has remained the same for about 30 years.
Are there efforts to preserve abortion rights in Michigan?
There are two cases currently before the Michigan Supreme Court that ask the court to rule that abortion rights are protected by the state’s constitution.
There is also a petition drive to put a measure on the November ballot that would enshrine abortion rights in the state constitution.
Are there efforts under way to ban abortion?
Right to Life of Michigan has joined a coalition called Citizens to Support MI Women and Children to work against the abortion rights constitutional amendment ballot proposal.
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