Michigan’s abortion ban struck down

Lorie Shaull from St Paul, United States, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons

What’s happening: Michigan’s 1931 abortion ban has been officially ruled unconstitutional (9/7/22), after months of ambiguity.

Why it matters: Abortion will likely remain legal in a key Midwestern state, an area where abortion access is otherwise decreasing rapidly.

Context: Although the ban was on the books, it was unclear whether it would be enforced. The state Governor and district attorney said they wouldn’t enforce it, but some county D.A.’s said they would. So abortion in Michigan has been de facto legal, but on shaky ground.

Yes, but: This was a ruling by a lower judge; no word yet about whether this ruling might be appealed by Republican legislators who were party to this case.

Zoom in: Legally, this case is interesting. The judge said that the ban was unconstitutional because it violated Michigan’s due process law, even though the U.S. Constitution’s Due Process clause is similarly phrased:

  • “[a]lmost a century, two world wars, a constitutional amendment granting women the right to vote, the emergence of a civil rights movement, and a sea change in laws regarding women’s status” separate the adoption of the Fourteenth Amendment in 1868 and the ratification of Michigan’s constitution in 1963.
  • We wonder whether the “old” meaning of the 14th amendment (“originalism“) makes any sense either, given how today’s world is different from the one from 1868.

What we’re watching: Michigan’s ballot initiative in November will determine whether abortion rights are enshrined in the state’s constitution.

  • Similar votes are happening in California, Kentucky, Montana and Vermont, after Kansas voters overwhelming voted in favor of maintaining abortion rights in their constitution.

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