What happens next for abortion in Michigan? What to know after Roe draft leaks from SCOTUS

Hayley Harding
The Detroit News

Many are wondering what comes next for abortion rights after a draft opinion from the U.S. Supreme Court leaked late Monday suggesting the country's highest court was poised to overturn Roe v. Wade.

In the draft, which was published by Politico and is dated from February, Justice Samuel Alito appeared to be writing for the majority when he said that Roe, the 1973 Supreme Court decision that grants Americans the right to abortions, "was egregiously wrong from the start." The draft's authenticity was confirmed publicly by Chief Justice John Roberts on Tuesday morning.

A leaked draft is not law, and abortion is still legal where it was before. But the draft does reflect the decision that many experts expected to come later this year through more formal channels, even if exact wording and perhaps final vote totals among the nine justices may still change.

More:The original Roe v. Wade decision also was leaked to the press

If the draft stands at its core when the Supreme Court releases its final decision, which typically happens in March, a lot could change in Michigan and around the nation.

Is abortion legal in Michigan?

Abortion remains legal in Michigan, as it has been for decades.

A leaked draft from the Supreme Court, while unprecedented, is in no way binding. The laws stay as they were before, and Roe still guarantees Michiganians the right to an abortion.

Clinics that were open before remain open, in Michigan and elsewhere. The state has around 30 clinics, according to estimates from the Guttmacher Institute, a pro-choice research group and a leading provider of abortion data.

"Abortion is still legal in Michigan and our health center doors are open. And we're going to fight like hell to keep it that way," said Dr. Sarah Wallett, chief medical officer for Planned Parenthood of Michigan, in a statement. 

There are restrictions on abortion in the state, but those have been in place for many years and are not the result of any changes at the Supreme Court. Those restrictions include requiring the person seeking an abortion to wait 24 hours, read state-mandated literature and pay for the procedure out of pocket.

What does the leaked Supreme Court decision say?

The draft, written by Alito and circulated to other justices on the Supreme Court, would overturn Roe v. Wade as well as Planned Parenthood v. Casey, a 1992 case that prevented states from putting "undue burden" on the right to abortion.

The decision would have states individually decide on abortion access, effectively leading to a patchwork of different legal statuses across the country. 

Specifically, the 98-page draft is offering a ruling on the case of Dobbs v. Jackson Women's Health Organization, a case from Mississippi centered on a ban on most abortions after 15 weeks of pregnancy.

The draft goes on to that the reasoning used to issue the original Roe decision was "exceptionally weak," creating "damaging consequences." 

Ultimately, the draft says that the Constitution does not inherently grant people the right to an abortion.

There is very little precedence for a leaked draft of a Supreme Court decision before that decision is actually released. A leaked draft is not binding, and it does not change any laws currently in place.

What happens in Michigan if Roe v. Wade is overturned?

The state will likely revert back to a 1931 law known as Act 328. Act 328 makes it a felony to perform an abortion in the state.

That means about 2.2 million Michigan residents would lose access to abortion, according to estimates from Guttmacher. Michiganians seeking abortions would instead need to travel for them, likely to Illinois.

It's also likely that some of Michigan's abortion clinics would have to close. Others could remain open to provide other sexual health services, including birth control and STI testing, but it's possible some doctors would instead choose to leave the state, Wallet told The News in January.

Even if the law is overturned, many officials who would be in charge of enforcing the 1931 law have said they would not do it, though. Michigan Attorney General Dana Nessel has said enforcing Michigan's abortion laws would “drive women to back alleys again."

"I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy," Nessel said in 2019, suggesting that doing so would be "sending women to be butchered." 

She has repeated similar sentiments regularly since, and has made access to abortion one of her campaign promises as she seeks re-election in November.

Others, including Oakland County Prosecutor Karen McDonald, have made similar promises.

"If Roe v Wade is overturned, I will do everything in my power to protect the over half a million women in Oakland County and their right to make choices over their own bodies," she said Monday night after the draft leaked.

Does Michigan have an abortion trigger law?

An abortion trigger law is a state law that goes into effect if Roe v. Wade is overturned. The laws vary from state to state, but they all effectively agree that if Roe is no longer the law, abortion is banned in that state.

Many states have them, including Texas, Wyoming and North Dakota, but Michigan's law is not that.

Act 328 is instead an old law that will come into play again if Roe does not prevent it.

Is it possible abortion would still be available in Michigan?

There are currently three main ways abortion could still remain legal in Michigan even if Roe v. Wade is overturned, but only two are legitimate possibilities.

The first is that the Michigan Legislature opts to codify abortion rights in the state, getting rid of Act 328 and instead replacing it with something that would maintain abortion access.

That is very unlikely, though. Democrats have repeatedly introduced bills to repeal Act 328, but Republicans, who control the Legislature and get to decide which bills move forward for votes, have taken no action on them.

The remaining two options are seen by abortion advocates as having a better chance of succesd. One is a citizen ballot initiative that seeks to "explicitly affirm" abortion as a right in the state by amending the state constitution.

The initiative comes from ballot group Reproductive Freedom for All, a coalition of the American Civil Liberties Union of Michigan, Planned Parenthood Advocates of Michigan and Michigan Voices. To get on the 2022 ballot, the group must collect 425,059 signatures by the middle of July.

The other option is separate lawsuits from Gov. Gretchen Whitmer and Planned Parenthood, both seeking to strike down Act 328.

Whitmer's suit seeks to use her executive authority to get immediate intervention from the Michigan Supreme Court, while Planned Parenthood's was filed in the Michigan Court of Claims. The suits seek to overturn a 1997 state Court of Appeals decision that found there was not a right to abortion in Michigan's constitution.

Both cases are making their way through the court system.

How do Michiganians feel about abortion?

A poll of 600 likely voters in a Detroit News-WDIV poll from January showed that two-thirds of likely general election voters wanted to see Roe v. Wade left in place. Only 19% of likely voters said they supported overturning Roe, while another 14% said they did not know. The margin of error was plus-minus 4 percentage points.

Likely voters supported repealing the 1931 law in almost the same measure, the poll found — 66% said they wanted to see it repealed, compared to 22% who wanted it left as it was.

More than three-quarters of all voters — 77% in total — said they felt abortion should be left as a decision between a woman and her doctor. Only 10% said they felt it should be regulated by law, with another 5% of respondents saying they felt both were necessary.

National polling shows similar numbers. In 2021, Pew Research Center found that 59% of people felt that abortion should be legal in all or most cases. The majority of people believe that across racial, age and gender lines, polling shows.

Who gets abortions in Michigan?

In Michigan, there were 29,669 reported abortions in the state in 2020, the last year data is available.

Just shy of 60% of all people who got an abortion in 2020 were in their 20s, according to data from the Michigan Department of Health and Human Services. More than 85% of them were unmarried, and nearly 70% of people had previously had a full-term pregnancy.

State data shows that 51.2% of the people who got an abortion in 2020 had never had one before.

The state estimates that 89% of those abortions happened at 12 weeks or before. Just over 89% of all abortions happened at a clinic.

National estimates from the Centers for Disease Control and Prevention look similar — across the country in 2019, the average person in the U.S. who had an abortion was in their 20s and had at least one other child

hharding@detroitnews.com

Twitter: @Hayley__Harding