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Why Gretchen Whitmer couldn’t wait


Lately, as we ride the subway to her school, my daughter and I have been reading stories about a large, New York family during World War I. The eldest daughter, Ella, frets about her soldier boyfriend, who is fighting in France. Ella is resourceful, curious, and determined. But while she has graduated from high school, her days are consumed with household chores, not further education or paid work. My daughter asked why.

“Ella,” I began, “lived in a different time. That women should have equal access to education and careers of their choosing is a more recent development. How lucky you are to have been born in the 2010s, not the 1910s!”

We walked across the street, and as I watched her skip over a puddle, I remembered and then shuddered. I was born when Roe v. Wade was four years young. Then, Roe promised women their bodies were their own, their destinies theirs to decide, whether they lived in Boise or Tulsa. When I considered what college to attend, where to accept a job, or when to go to grad school, my access to reproductive health care did not factor into those decisions.

But Dobbs v. Jackson Women’s Health Organization, the case expected to overrule (or at least sharply curtail) Roe v. Wade before summer’s first fireworks, conjures a wholly different map for my daughter. Where I saw wide open spaces, she’ll find pockets of access amidst broad swaths of state control.

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Of course, while Dobbs could formally eviscerate Roe, the Supreme Court functionally ended its reign when it refused to block SB 8, the Texas law that outlaws abortion after six weeks and relies on private citizens, not state actors, for its enforcement. 

And although neither SB 8 nor any other Texas law allows women to be prosecuted for aborting their own pregnancy, its success likely emboldened the Starr County Sheriff’s office to arrest a Texas woman earlier this month. That woman spent two nights in jail before abortion activists came up with her $500,000 bail. Only after her release did the county attorney announce “applicable Texas law” did not allow her prosecution. Her supposed crime? Unsuccessfully attempting to self-abort and then confessing as much to those entrusted with her care at a local hospital. Indeed, hospital administrators were the ones who reported her to law enforcement. 

Anti-abortion Texans aren’t the only ones feeling empowered. Since the Supreme Court allowed SB 8 to take effect, and further anticipating Roe’s demise, multiple states have played copycat —or worse. For example, although it has been temporarily blocked, Idaho’s new law modeled after SB 8 “allows family members of what the legislation calls a ‘preborn child’ to sue the abortion provider, and establishes a reward of at least $20,000, plus legal fees.”

Other state legislatures, including in Florida, Kentucky, and Arizona, have approved statutes mimicking the Mississippi law at issue in Dobbs, which bans abortion after 15 weeks. In fact, Kentucky’s legislature was so hellbent on enacting its ban, which took effect immediately, that it overrode Governor Andy Beshear’s veto last week. And because of some of the bill’s other features — notably, extensive reporting requirements that Kentucky’s only remaining two clinics cannot fulfill — Kentucky is now “the first state without legal access to abortion since Roe.”

Still, Oklahoma remains in the race for “Most Draconian Abortion Restriction.” Despite the thousands of Texan women who have sought abortions in neighboring Oklahoma since SB 8 took effect — or perhaps, because of them — the Oklahoma legislature determined to “ban abortion entirely and make performing the procedure a felony punishable by up to 10 years in prison and a $100,000 fine.” Governor Kevin Stitt signed that bill last week, proudly announcing, “We want Oklahoma to be the most pro-life state in the country.” As my colleague Steve Benen shrewdly observed, if you want to know what a post-Roe America would look like, “[l]ook no further than Oklahoma.

But unlike Oklahoma, where outlawing abortion has required a flurry of legislation, seven states might not have to do anything to make abortion illegal should Roe fall. (According to the Center for Reproductive Rights, they are Michigan, Wisconsin, Oklahoma, Arkansas, Mississippi, Alabama, and North Carolina.) Why? Each has so-called “zombie laws”: “pre-Roe criminal statute[s] banning abortion that remain[] on the books.” And that sets up a perverse waiting game: Roe and its progeny guarantee a woman’s right to an abortion, subject to certain limits, until the Supreme Court says they don’t, thereby reviving antiquated laws to devastating effect.

Michigan is among the states where waiting for Dobbs is especially fraught. Today, in Michigan, a woman can obtain an abortion in thirteen counties which, among them, have twenty-seven abortion providers. Yet if Roe is overturned tomorrow, under a 1931 Michigan statute, anyone who performs an abortion or attempts to do so would be committing a felony, unless the procedure is necessary to save the woman’s life.

So why hasn’t Michigan amended its law, or at the very least, why doesn’t it do so now? After all, fear of this exact moment is what motivated New York to erase its own statute criminalizing abortion and expand abortion access in 2019. Even states without major impediments to abortion access are taking action. Just this month, and over Governor Larry Hogan’s veto, Maryland too expanded abortion access. As of July 1, nurse practitioners and other health care professionals will be allowed to perform abortion in Maryland; insurance plans also will be forced to cover abortion for Maryland’s women in most circumstances.

Of course, Democrats control Maryland’s legislature. By contrast, Michigan lawmakers — led by the GOP in both chambers — show no appetite for amending its 91-year-old law, despite entreaties from reproductive health providers, civil rights advocates, and Democratic Governor Gretchen Whitmer herself. Nor is it clear that a proposed constitutional amendment expressly protecting the right to abortion will qualify for the November ballot, despite a recent poll showing more than two-thirds of Michiganders support Roe and a similar number favor repealing the 1931 ban.

Yet as an attorney experienced in reproductive rights litigation confirmed to me, advocates and providers have a “credible fear” that Michigan will treat its 1931 statute as fully effective if Roe is overruled. Specifically, two months after Roe, the Michigan Supreme Court considered the constitutionality of prosecuting a non-physician under Michigan’s statute in People v. Bricker. The court conceded it was “bound by the decisions of the United States Supreme Court in Roe v. Wade and other cases. . . .[O]ur criminal abortion statute cannot stand as relating to abortions in the first trimester of a pregnancy as authorized by the pregnant woman’s attending physician in exercise of his medical judgment.”

But the court also reasoned that “we cannot accept as a necessary implication that, because doctors may perform abortions under prescribed circumstances, means that anyone who has or will perform an abortion can do so with impunity.” In other words, instead of enjoining or striking down the statute in part or full, it simply held that doctors should be considered exempt from it in accordance with Roe.

Nearly 30 years later, a doctor argued that he could not be prosecuted for performing an abortion at twenty-eight weeks because by enacting a variety of abortion restrictions, Michigan’s legislature essentially had repealed the 1931 ban by implication. A Michigan appeals court disagreed, holding, as in Bricker, that the law could be enforced so long as a prosecution did not conflict with Roe. Ominously, that case was the last word on Michigan’s abortion ban.

Meanwhile, although the Supreme Court decides cases on its own timetable, it typically rules on all cases heard during a term by the end of June. Whitmer understands she is fighting against that clock. As she told the Detroit Free-Press earlier this month, “[I]f we fail to act, and abortion becomes illegal in our state for virtually any reason — including cases of rape and incest — we will have one of the most extreme laws in the country.”

So what’s a governor to do? For starters, Whitmer seems to have found inspiration in the unlikeliest of places: Texas. SB 8 knocked the reproductive rights movement off balance through its brazen disregard for the role of courts and its structural novelty; by placing the law’s enforcement in the hands of private citizens, its architects purposefully (and successfully) circumvented judicial review. One even boasted to the New York Times that “there are ways to counter the judiciary’s constitutional pronouncements, and Texas has shown that the states need not adopt a posture of learned helplessness in response to questionable or unconstitutional court rulings.”

Whitmer and her legal team countered with a creative legal strategy of their own —and one that depends on a confluence of “only in Michigan” factors. Almost two weeks ago, she filed a lawsuit in a state trial court challenging the constitutionality of Michigan’s ban and named the prosecutors in each county where abortion services are provided as defendants. What’s so special about that?

  • First, Whitmer is not characterizing Michigan’s law as defective under the federal constitution. Rather, she argues that both the due process and equal protection clauses of Michigan’s constitution guarantee a woman’s right to abortion.
  • Second, abortion cases often devolve into fights over standing, or the legal concept of who has been injured and has the right to seek redress. Here, Whitmer has backup from her state’s constitution again: It expressly empowers the governor to sue “to restrain violations of any constitutional . . . right by any officer, department or agent of the state or any of its political subdivisions,” including local law enforcement and prosecutors.
  • Third, Whitmer deployed a relatively obscure Michigan court rule in order to obtain immediate review by the Michigan Supreme Court, which has “an unofficial 4-3 Democratic majority.” That rule effectively allows the governor to leapfrog lower courts where a case “involve[s] a controlling question of public law, and the question is of such public moment as to require an early determination.” All the governor needs to do is send the Supreme Court an “executive message” explaining why.

Collectively, those moves struck me as both unexpected and imaginative. But as a gut check, I consulted with an attorney experienced in reproductive rights litigation who spoke on the condition that I do not identify them or their employer. Asked for their assessment of Whitmer’s approach, they called it an “extremely clever” and “noble effort.”

Whether it will work, however, is an open question. For one, the Michigan Supreme Court can reject Whitmer’s overture to leapfrog the lower courts; the choice is theirs alone. And the fact that the governor is the plaintiff makes an already political issue that much more so.

Additionally, even if the justices are receptive to Whitmer’s invitation, they will have to grapple with their court’s prior reluctance to review the abortion ban under the state constitution. By refusing to hear an appeal in 1997, the Michigan Supreme Court effectively left in place a lower court ruling that “there is no right to abortion found in the Michigan Constitution.” That ruling is not binding on a higher court, but nor can it be ignored, especially in the absence of other case law squarely on point.

Putting aside the meaty constitutional issues, there also could be a more mundane obstacle: ripeness. Well before it can be decided, any lawsuit has to meet certain threshold criteria just to get past the courthouse door. One of those factors is ripeness, the idea that a plaintiff must allege a real and imminent injury, as opposed to a purely speculative or abstract one. How that cuts here is hard to say. On one hand, the U.S. Supreme Court only has about 10 weeks left to decide Dobbs. The governor also insists in her complaint that uncertainty about the 1931 ban’s enforceability “chills the right to abortion and currently affects the decisions of Michiganders seeking abortion,” thereby making it “necessary and appropriate” for the court to rule now. On the other hand, none of us knows what Dobbs will bring—and so far, no Michigan prosecutor has pending criminal charges against physicians that conflict with Roe.

Perhaps most significantly, to date, the Michigan Supreme Court has met Whitmer’s suit with silence. No hearings have been set; no briefing has been scheduled. So whether Whitmer’s lawsuit amounts to a political success, a legal victory, both, or neither remains to be seen. But at the very least, Governor Whitmer has infused the fight for reproductive justice with something it desperately needed: a bold and urgent offense.

P.S. I’ve been popping up more here on the MaddowBlog to share my thoughts about legal developments, but I’m also here to answer your questions about the legal news of the day. Please send an email to Rachel@msnbc.com with “Ask a Recovering Lawyer,” in the subject line and as Rachel says, “Watch this space.”

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