The 1931 Michigan law banning abortion is unconstitutional, Court of Claims Judge Elizabeth Gleicher ruled Wednesday. That makes a preliminary injunction against enforcement of the 1931 law permanent, though Gleicher’s decision could be appealed to higher state courts, and the fate of an amendment protecting abortion rights is currently in the hands of the state Supreme Court.
Banning abortion, Gleicher ruled, would not only violate the due process right to “bodily integrity,” but, Washtenaw County Prosecuting Attorney Eli Savit explained in an important Twitter thread, would violate the Michigan constitution’s equal protection clause as well.
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On the first point, Gleicher wrote, “Manifestly, criminalizing abortion will eliminate access to a mainstay healthcare service. For 50 years, Michiganders have freely exercised the right to safely control their health and their reproductive destinies by deciding when and whether to carry a pregnancy to term. Eliminating abortion access will force pregnant women to forgo control of the integrity of their own bodies, regardless of the effect on their health and lives.”
As for equal protection, “The statute not only compels motherhood and its attendant responsibilities, it wipes away the mother’s ability to make the plans she considers most beneficial for the future of her existing or desired children. Despite that men play necessary role in the procreative process, the law deprives only women of their ability to thrive as contributing participating in world outside the home and as parents of wanted children.”
She continued, “Our Constitution does not permit the Legislature to impose unjustifiable burdens on different classes of pregnant women. It also forbids treating pregnant women as unequal to men in terms of their ability to make personal decisions about when and whether to be a parent.”
This is good news, and a powerful opinion, but Michigan is awaiting another consequential state court decision on abortion rights: After a coalition of groups submitted a record-breaking number of signatures to get an amendment protecting reproductive rights on the November ballot, the Michigan Board of State Canvassers deadlocked on whether to allow the measure after opponents of abortion challenged the amendment over errors in spacing and formatting. That blocked its certification, which is now in the hands of the state Supreme Court.
“Technicalities should not undermine the voice of the voters and the will of the people from coming to fruition,” Michigan Secretary of State Jocelyn Benson told The 19th. “And yet when we see a hyper politicization of these canvassing boards at the state or local level, that’s essentially the danger: that they choose partisanship over the law and doing what’s right. My hope is that the law will prevail here.”
That decision is expected any day now, along with a decision on a ballot measure expanding voting rights. Democrats have a narrow majority on the Michigan Supreme Court, with control of the court itself being on the ballot in November.
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