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What you need to know about Michigan’s 1931 abortion law

 A woman holds a sign in support of Roe v. Wade in front of those in favor of overturning it at a "Bans Off Our Bodies" protest May 14, 2022 in Ann Arbor, Michigan.
Jodi Westrick
/
Michigan Radio
A woman holds a sign in support of Roe v. Wade in front of those in favor of overturning it at a "Bans Off Our Bodies" protest May 14, 2022 in Ann Arbor, Michigan.

A law passed in Michigan in 1931 that bans abortions has been unenforceable since 1973 when the Supreme Court ruled on Roe v. Wade.

And although the Supreme Court has ruled to overturn that decision, that old law isn't going into effect quite yet. We've compiled everything you need to know about what the law, and the end of Roe v. Wade means for Michigan.

Is abortion now illegal in Michigan?

No. In April, Planned Parenthood of Michigan and Dr. Sarah Wallett filed a lawsuit seeking to block enforcement of the 1931 law, which would outlaw abortion in the state.

In May, the Michigan Court of Claims granted a preliminary injunction in the suit, meaning the 1931 law will not go into effect until there is a decision in the lawsuit.

However, Right to Life of Michigan, the Michigan Catholic Conference, and two county prosecutors have asked the appeals court to throw out the injunction. Republican leaders in the state legislature have also filed a brief saying they would defend the law in court since Attorney General Dana Nessel has refused to.

What does the 1931 law say? 

Under this law, almost all abortions would be considered a felony with a possible penalty of up to four years in prison.

Both doctors who assist in abortions and pregnant people who use medication for self-abortions could be charged.

What exceptions are granted? 

The law — one of the strictest in the county — does not grant exceptions in cases of rape or incest. It does grant exceptions to “preserve the life” of the mother, however, experts aren’t sure exactly what that means.

When considering other factors — such as the risk level, the viability of the fetus, or pre-existing conditions that may be worsened by the pregnancy — many doctors are concerned about the phrase's ambiguity. Some physicians say they would be forced to decide if a pregnancy is risky enough to justify an abortion under the 1931 law, and to defend themselves if charged.

Why wasn’t the law repealed? 

Michigan Democrats previously introduced bills attempting to repeal the 1931 law, but they did not pass through the Republican-dominated legislature. This is true in many states, where similar limits on abortion would take effect if Roe is overturned.

Could it still be repealed? 

Yes. A petition initiative is underway for those hoping to get a reproductive rights amendment proposal on the November ballot. In April, Gov. Gretchen Whitmer filed a lawsuit asking the Michigan Supreme Court to strike down the law. Planned Parenthood of Michigan and the ACLU of Michigan both also filed lawsuits, which caused the temporary injunction described above, and are assisting with ballot initiatives.

What other changes could be made if the law takes effect? 

Bills introduced by Republican legislators are aiming to ban abortion drugs being prescribed through telemedicine, and a budget proposal would deny Medicaid funds to clinics offering abortion services.

What would it look like if invoked? 

Attorney General Dana Nessel, who is up for reelection in November, said she would not enforce the law. Seven county prosecutors also said they will not prosecute abortion cases if the law takes effect.

Nessel acknowledged, however, that she cannot prevent elected county prosecutors from bringing such cases.

Copyright 2022 Michigan Radio. To see more, visit Michigan Radio.

Emma Ruberg