Michigan Abortion Law: What You Need to Know If SCOTUS Overthrows Roe

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If this official ruling follows the draft’s legal arguments — authored by Samuel Alito and joined by four other conservative justices on the nine-judge tribunal — the legality of abortion would be up to each state.

Under a 1931 law that would be reinstated if Roe’s fall, Michigan would be one of nine states to ban abortion. Thirteen states have post-Roe bans that would go into effect if the decision is overturned, with other states having strict restrictions. But there are several obstacles to the application of this law by the State.

Here’s what we know now:

Are abortions still legal in Michigan?

Yes for now. The document leaked to the media on Monday is a draft written in February and circulated among the judges, as drafts regularly are. The court’s final decision is not expected before June. Michigan clinics that provide abortion services and doctors prescribing abortion pills can continue to do so for now.

If this is just a draft, could the Supreme Court’s decision change?

Bills can and do change, and judges regularly agree or withdraw from a particular opinion as the legal arguments evolve. But one of the five conservative justices who signed on to the draft is expected to switch sides (unlikely), and Chief Justice John Roberts, whose vote was not included in the draft, is also expected to side with the more liberal judges. Roberts is considered a conservative, but he is also an institutionalist and may be reluctant to overturn what many scholars considered established law.

If the Supreme Court strikes down Roe, what will happen in Michigan?

Michigan has laws in effect since 1846 that criminalize abortion. Michigan law, as revised in 1931, make it a crime for a medical provider to perform an abortion unless it is necessary to preserve the life of the mother. The law also criminalizes the sale of abortion drugs in Michigan.

This law has been unenforceable since Roe, but was never specifically repealed and would likely be operational again if the Supreme Court overturned its 1973 precedent.

Attorney General Dana Nessel says she would not enforce the 1931 law. Does that mean abortion clinics would stay open?

Not necessarily. On Tuesday, Planned Parenthood of Michigan spokeswoman 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 was bowled over.

The bottom line: Even though Michigan’s Democratic attorney general says she won’t enforce the state’s 1931 law, it’s unclear whether clinics will take the chance and stay open.

Local prosecutors could decide for themselves whether 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 admitted on Tuesday that his office lacked the ability to prevent local authorities 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, although there is one clinic in Petoskey and Marquette on the Upper Peninsula.