How Gretchen Whitmer and other Democratic governors are fighting to protect abortion rights

In Michigan, Democratic Gov. Gretchen Whitmer — fearing that the U.S. Supreme Court will overturn Roe v. Wade — has filed a lawsuit in the hope of getting the Michigan Supreme Court to rule on the constitutionality of abortion. Washington Post opinion writer Karen Tumulty, in her April 10 column, cites Whitmer as a prime example of a Democratic governor who is taking steps to protect abortion rights in what could become a post-Roe America.

Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, they have had terrible luck with the U.S. Supreme Court — where Republican appointees now enjoy a 6-3 majority. The High Court, later this year, is scheduled to rule on the case Dobbs v Jackson Women's Health Organization, which deals with a draconian abortion law in Mississippi. And it is possible the case will result in Roe being overturned.

Overturning Roe would not be a nationwide abortion ban; rather, the legality of abortion would be decided on a state-by-state basis. In Michigan, Tumulty notes, that could mean going back to a 1931 standard on abortion.

“Michigan, though one of the most tightly fought swing states in the country, is also a place where support for access to abortion is strong,” Tumulty explains. “Nearly 70% of voters in one recent poll expressed support for the Supreme Court’s 1973 Roe v. Wade decision establishing abortion as a constitutional right. However, if the Court does what many people expect it to do in an upcoming Mississippi case and overturns Roe, the law governing abortion in Michigan will revert to one of the most extreme in the country: a 1931 measure, unenforceable after Roe but still on the books, that makes it a felony to provide the procedure, except where necessary to save the life of the pregnant woman.”

The recent poll that Tumulty is referring to is a WDIV/Detroit News survey, which found that only 19.1% of Michigan voters want to see Roe overturned.

In an interview, Whitmer told Tumulty that there is no way the GOP-controlled Michigan State Legislature would vote to overturn the state’s 1931 abortion law — which is why Whitmer filed her lawsuit. Whitmer is hoping the Michigan Supreme Court will strike down the 1931 law, thus making it unenforceable if Roe is overturned.

“Using powers specific to her office that allow her to leapfrog normal legal processes,” Tumulty observes, “Whitmer filed a lawsuit to put the question of whether abortion is a protected right under the Michigan Constitution directly to the State Supreme Court, an elected body with a slight Democratic majority. Whitmer acknowledges that, legally speaking, she is rolling the dice in seeking to apply state constitutional protections under its due process and equal protection clauses.”

Whitmer told Tumulty, “I think it’s very clear: The assault on women’s privacy rights, health rights, and bodily autonomy is not theoretical. It is a very real and present danger…. Here’s the thing: The (Michigan) Supreme Court has never weighed in on this, and that’s why it’s important to do so right now.”

The Michigan governor, who is seeking reelection in the 2022 midterms, continued, “Regardless of how people personally feel about abortion, it’s a woman’s health and wellbeing that should be driving these important medical decisions. That’s what’s so important and what’s at stake here. I’m confident in our legal case that we’re bringing, but I can’t predict precisely what the outcome’s going to be.”

Whitmer also told Tumulty that she is hoping the Michigan Supreme Court will hand down a decision in her lawsuit before the U.S. Supreme Court makes its decision in Dobbs.

Whitmer told Tumulty, “Many of us who have these antiquated laws on the books, or have got hostile legislatures that don’t believe in this right and are even making it more difficult for women, I think are assessing what tools we have.”

If Roe is overturned, abortion will immediately become illegal in a long list of red states — while Democrats in deep blue states like California, Massachusetts and New York have been very aggressive about protecting abortion rights. And the most intense battles over abortion, post-Roe, are likely to occur in battleground states such as Michigan and Pennsylvania. If Roe is overturned and abortion rights are on the line in overwhelmingly Democratic Philadelphia, it’s a safe bet that abortion rights will be debated a lot in Pennsylvania.

“In Wisconsin, Pennsylvania, North Carolina and Kansas, for example, Democratic governors have used their veto power to block anti-abortion measures sent to them by GOP legislatures that do not have the numbers to override,” Tumulty observes. “For Whitmer, who is running in what many expect to be a close race for reelection this year, the abortion issue has also shifted the political environment…. In Michigan, the only option might be making a bet on an uncertain legal course.”

Whitmer told Tumulty, “I think four years ago, we never could have imagined how (quickly) a woman’s right to make her own decisions about her body and her health could be taken away. That’s how precarious this moment is, and that’s why we have to take action now.”