Michigan Judge Strikes Down State's 1931 Anti-Abortion Law

A Michigan judge on Wednesday struck down the state's 1931 law banning abortions, which was reactivated after the US Supreme Court removed nationwide protections for abortion rights earlier this year.

On Wednesday, Michigan Court of Claims Judge Elizabeth Gleicher extended a temporary injunction against the law she had issued in May, making permanent her ban against prosecuting people who give or receive abortions.

"The legal issue presented is whether or state's constitution empowers the legislature to override personal health decisions by compelling a person to use her body in a manner not of her own choosing," Gleicher wrote in the decision. "The court finds that such compulsion destroys the sphere of bodily integrity and personal autonomy underlying the liberty component of the Due Process Clause."

The judge wrote that “A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives — it denies them of their dignity. Michigan's Constitution forbids this violation of due process.”

"[O]ur state's constitutional history charts a unique course for the interpretation of personal right;" Gleicher explained, pointing out that "the structural differences between the two constitutions warrant interpreting our Due Process Clause more expansively than the United States Supreme Court interprets the federal provision; our constitution contains text relevant to due process that has no counterpart in the United States Constitution, and a matter of 'peculiar' state interests - the promotion of public health - points toward interpreting our constitution in a manner that preserves and protects the health of our citizens."

In the wake of Gleicher's temporary injunction in May, anti-abortion activists attempted to argue that the ban only applied to the Michigan Attorney General's Office and not to prosecutors in Michigan's 83 counties. However, Last month, Oakland Circuit Judge Jacob Cunningham also blocked enforcement of the law, arguing that because a constitutional amendment on permitting abortion before the fetus reaches viability is set to appear on the ballot in the November 2022 elections, Michiganders will be able to decide the issue democratically.

A lawsuit against the by the state's Democratic governor, Gretchen Whitmer, also remains unsettled in the Michigan Court of Appeals and Michigan Supreme Court.

Prosecutions under the 1931 law ended in 1973 when the US Supreme Court ruled in the Roe vs. Wade case that the right to an abortion was protected nationwide under the already-existing right to privacy. However, the new conservative majority on the high court overturned that decision in June 2022 in another case, Dobbs vs. Jackson, arguing that the court had exceeded its power in creating a right without historic foundation in the country's values.

The Dobbs vs. Jackson decision allowed laws like Michigan's, which were never removed from the books, to be reactivated, as well as activating "trigger laws" that immediately banned abortions in several other states, having been passed years ago by conservatives anticipating the eventual demise of the Roe ruling. As a result, abortions have been banned or almost totally banned in 19 US states, where roughly one-third of US women of childbearing age live.