In two new filings, the Michigan Supreme Court is being pressed by Governor Gretchen Whitmer and Democratic prosecutors to declare abortion rights are protected by the state constitution now that Roe v. Wade has been overturned.
Whitmer, prior to the U.S. Supreme Court’s Dobbs v. Jackson decision, asked the state’s highest court to rule preemptively that the Michigan Constitution’s due process and equal protection clauses protect abortion rights.
Whitmer said in a statement Monday that the Dobbs decision makes acting on her request an urgent matter.
“This only underscores the need for the Michigan Supreme Court to act now, which is why I sent a notice to the court urging them to immediately take up my lawsuit and decide if access to abortion is protected under the Michigan Constitution. Getting this done will put an end to any confusion and ensure that Michiganders, health providers, and prosecutors understand the law.”
A Michigan Court of Claims judge has enjoined enforcement of the state’s dormant 1931 abortion ban. That court order remains in effect, which means abortion is still legal in Michigan.
But Washtenaw County Prosecutor Eli Savit said that could change without the finality that would come with a Michigan Supreme Court decision.
“The Michigan Supreme Court should hear that case now,” Savit told Michigan Public Radio. “Litigation is going to continue. There’s no question about that and, to be candid, that injunction like any injunction could be lifted by a higher court. It could be lifted by the judge.”
Savit is one of several Democratic prosecutors who’ve asked the state Supreme Court to hear arguments.
But it could only be a matter of time before some prosecutors decide to test the issue, said an attorney representing some Republican prosecutors.
“They’re now no longer barred by this [U.S.] Supreme Court precedent,” David Kallman told Michigan Public Radio in an interview Friday after the Dobbs decision came down. “So, therefore, it’s up to prosecutors what they’re going to do or not do and whether they choose to enforce the law or not.”
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