Abortion re-emerges as wedge issue in Michigan governor's race

Jonathan Oosting
The Detroit News
Democrat Gretchen Whitmer and Republican Bill Schuette

Lansing —  Michigan should act fast to protect women’s right to safe and legal abortion, Democrat Gretchen Whitmer said Tuesday as she unveiled plans to combat what she warned may become an “extremist” U.S. Supreme Court.

Abortion is re-emerging as a wedge issue in Michigan’s gubernatorial election amid speculation over the fate of Roe v. Wade, the landmark 1973 decision that invalidated broad state laws criminalizing abortion.

President Donald Trump's second nomination to the U.S. Supreme Court has renewed the debate over the ruling, since Brett Kavanaugh’s confirmation would give the court five conservative justices. It also has energized anti-abortion activists who have spent decades fighting to overturn it.

Whitmer and other Democratic hopefuls say they would defend legal abortion options if federal safeguards are overturned. Republican candidates say they would defend an old state law that would again make it a crime.

No sitting conservative justice has raised the issue of overturning Roe v. Wade, although some of them criticized Roe v. Wade's legal reasoning prior to joining the court. To date, the court has allowed states to put restrictions on the practice, but not outlaw it. 

An abortion ban dating back to 1846 remains on the books in Michigan, and Republican candidates for governor say they would work to enforce the 1931 version of the law if Roe v. Wade is scrapped while they are in charge of the state.   

“I think the laws in the state of Michigan reflect pro-life values already,” said Lt. Gov. Brian Calley of Portland, who is running to replace term-limited Gov. Rick Snyder. “I don’t even think you’d have to do anything.”

Attorney General Bill Schuette of Midland offered a similar assessment and told The Detroit News he’d be “a pro-life governor, period.”

Schuette is "not engaging in hypotheticals about future Supreme Court decisions, but as governor he would enforce the laws on the books, just as he does now as attorney general," said campaign strategist John Sellek.  

A Supreme Court reversal would again make legal abortion a state issue, and Whitmer said last week she would begin preparing for that possibly “on day one” if elected governor.

“That’s why the question of whether it’s going to be Bill Schuette ought to scare the heck out of every woman in this state and every man who cares about family planning,” Whitmer said. “They will set us back decades, and that’s why if I win this election, I’ll use every ounce of my power to protect a woman’s right to choose.”

The former state Senate minority leader from East Lansing on Tuesday released a plan for "protecting Roe v. Wade in Michigan” by proposing to repeal the 1931 ban, restore family planning funding cut in 2013, repeal an abortion insurance law and eliminate a 24-hour waiting period for abortion. She also wants to update “burdensome and ineffective” sexual education laws.

Supreme Court speculation

Trump last month nominated federal appeals court judge Brett Kavanaugh to replace retiring U.S. Supreme Court Justice Anthony Kennedy, a Republican nominee who had voted to uphold abortion rights in some high-profile cases.

Kavanaugh’s stances on Roe v. Wade and judicial precedent are sure to be hot topics in his Senate confirmation hearings, but anti-abortion groups initially praised his nomination.  As a candidate in 2016, Trump predicted that if he got to pick two or three justices for the court, the 1973 decision would be overturned.

"It will go back to the states and the states will then make a determination,” Trump said in a Las Vegas debate.

Michigan’s abortion ban law, currently treated as unenforceable, makes it a felony crime for a person to give a pregnant woman any medicine, drug, substance or “thing” or to use any instrument to end a pregnancy unless necessary to preserve the life of the mother.

Michigan is one of roughly 10 states with a ban that could be re-applied if Roe v. Wade is overturned, said Genevieve Marnon, legislative director of Right to Life of Michigan.

While overturning Roe v. Wade is “something we’ve been praying for for 45 years,” Marnon said the goal remains a hypothetical despite optimism over Trump's pick. There would still be several hurdles to clear in the U.S. Supreme Court, and opponents would likely challenge the Michigan law immediately.   

“None of us can really predict what could happen," Marnon said, noting her group's continued focus on electing "pro-life" candidates to the state Legislature, governor's office and attorney general's office. 

Michigan voters in 1972 rejected a ballot initiative that would have overturned the state ban and allowed physicians to perform abortions up to 20 weeks. But the U.S. Supreme Court invalidated the law a year later.

Experts who say the ban would again take effect if Roe v Wade is overturned point to a Michigan Supreme Court decision in 1973. Justices blocked the enforcement of the state law against physicians but did not repeal it. The Michigan Court of Appeals ruled in 1997 that there is no right to abortion under the state Constitution.

"Michigan was not one of the states that charged ahead and changed its criminal law," said Richard Thompson, president and chief counsel for the conservative Thomas More Law Center in Ann Arbor. "So my opinion is that if Roe v. Wade is overturned, (the law) would go into full effect." 

Robert Sedler, a professor of law and constitutional expert at Wayne State University, agreed that if Roe were overturned, “as of that moment abortion would be illegal in Michigan.” But Sedler said he cannot imagine the high court, no matter its makeup, overturning Roe.

“It would be cataclysmic,” he said. “The criteria for overturning is it has to be undercut by later decisions, and there can’t have been societal reliance on that decision.”

Even if the Supreme Court does not overturn Roe, abortion advocates fear an increasingly conservative bench could uphold other attempts to limit the existing right, said Lori Carpentier, president and CEO of Planned Parenthood Advocates of Michigan

“It’s possible Roe would get overturned, and I would never want to downplay that," she said, but a "gutting of Roe" may be more realistic and politically palatable.  

Planned Parenthood endorsed Whitmer for governor, and Carpentier said the group is trying to help reshape the GOP-led Legislature that does not currently promote "the safety and egalitarianism of women."

Partisan fighting lines

Republican gubernatorial hopeful Patrick Colbeck, a state senator from Canton Township, said keeping the state ban on the books gives Michigan an "opportunity" to end legal abortion "when and not if" Roe v. Wade is reversed.

“The Democrats are going to be throwing everything they’ve got at it to try to kill that baby in the womb, and we’re going to do everything we can to defend them,” Colbeck said.

Whitmer suggested last week in a televised debate that she could try to spearhead a constitutional amendment ballot measure to protect abortion rights, which would require a statewide vote.

Shelby Township Democrat Abdul El-Sayed, former director of the Detroit health department, has also called for urgent action. 

“This is mission critical right now,” El-Sayed said, indicating he would work with Democratic attorney general hopeful Dana Nessel to explore options for “abrogating” the current law.

 “I know that that choice has to be an individual choice, and we cannot put government between a woman and her doctor," he said. "We’ve got a real responsibility here.”

Nessel, in a recent online video, vowed she would “never” prosecute a woman who decides to choose an abortion. The state’s next attorney general “will have the power to enforce these dangerous and unfair laws, which will drive women to back alleys again,” she said in the video, holding a coat hanger in her hands.

Ann Arbor entrepreneur Shri Thanedar said he would direct the Michigan Department of Health and Human Services to convene a work group to explore “the way forward absent Roe v. Wade” and consider a state constitutional amendment to “enshrine a woman’s right to abortion.” He also vowed to request a state attorney general's opinion on the existing law.

Through those efforts, Thanedar said he would work to ensure “that Michigan is properly prepared to move beyond Roe v. Wade and without an interruption in the women's health services provided across the state.”

Saginaw obstetrician Jim Hines, a Republican who said he has shown ultrasound images of "their little baby" to pregnant women considering abortions, said he does not know what will become of Roe v. Wade under a new-look Supreme Court.

“But I am someone who will support life, and I see the value of life, not just from the beginning of life but from natural death,” Hines said.


(517) 371-3662