A judge in Michigan late on Sept. 7 invalidated a 1931 state law banning abortions in the state that stopped being enforced in 1973 when the U.S. Supreme Court legalized abortion throughout the United States.
The decision, which seems likely to be appealed, came as the Michigan Supreme Court considers whether to put a proposed amendment on the Nov. 8 ballot that would insert abortion rights into the Michigan Constitution. The same court is also considering whether to entertain a legal challenge to the law.
The long-dormant state law became enforceable two-and-a-half months ago when the Supreme Court overturned Roe v. Wade, which returned the regulation of abortion to the states.
Since then the statute has been litigated in the courts and an injunction was issued preventing it from being enforced.
The state law is section 750.14 of the Michigan Compiled Laws, which prohibits all abortions except those performed “to preserve the life of [a] woman.”
Violating the law is a felony and if the pregnant woman dies as a result of the procedure “the offense shall be deemed manslaughter,” the law states.
The statute does not make exceptions for pregnancies from rape or incest or for fetal abnormalities.
The ruling came in Planned Parenthood of Michigan v. Attorney General of the State of Michigan (case 22-000044-MM).
Michigan Court of Claims Chief Judge Elizabeth Gleicher, a Democrat, found that the “compulsion” in the 91-year-old statute “destroys the sphere of bodily integrity and personal autonomy underlying the liberty component of the Due Process Clause” of the U.S. Constitution.
Gleicher wrote “criminalizing abortion will eliminate access to a mainstay healthcare service. For 50 years, Michiganders have freely exercised the right to safely control their health and their reproductive destinies by deciding when and whether to carry a pregnancy to term.
“Eliminating abortion access will force pregnant women to forgo control of the integrity of their own bodies, regardless of the effect on their health and lives. The evidence further establishes that the enforcement of a 1931 law withdrawing that right will have dire public-health consequences.”
The state law is facially unconstitutional, the judge wrote, “because its enforcement would deprive pregnant women of their right to bodily integrity and autonomy, and the equal protection of the law.”
The Associated Press reported that Gleicher, who is also chief judge for the Michigan Court of Appeals, acknowledged weeks ago that she has regularly donated to Planned Parenthood and gave $1,000 to the 2018 campaigns of Gov. Gretchen Whitmer and Attorney General Dana Nessel, both of whom are Democrats in favor of abortion rights.
She refused to recuse herself from the case saying, “Judges are presumed to be unbiased and impartial.”
Whitmer hailed the new court ruling.
“Today, the courts have ruled once again that Michigan women have the right to make medical decisions with their health care provider and those they trust,” she said in a statement.
“I have been fighting like hell to protect reproductive freedom in Michigan for months and am grateful for today’s lower court ruling declaring our extreme 1931 abortion law unconstitutional.”
But because “our rights [are] still hanging by a thread, the Michigan Supreme Court needs to provide certainty and rule on my lawsuit to protect the right to abortion in the state constitution.”
Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, also praised Gleicher’s decision.
“This is a historic victory for patients and providers in Michigan who have been forced to live under the threat of an archaic criminal abortion ban since the U.S. Supreme Court overturned Roe v. Wade,” Johnson said in a statement.
“By permanently blocking the 1931 law criminalizing abortion, Michigan’s Court of Claims has protected the continuity of care that Michiganders have enjoyed for nearly half a century and ensured that no overzealous prosecutor can come between a patient, their provider, and their health care.”
The Republican-controlled Michigan Legislature has not yet decided if it will appeal.
“The House is reviewing the ruling,” spokesman Gideon D’Assandro told the AP.