In Dobbs, State Health Officer of the Mississippi Department of Health, et. al. v. Jackson Women’s Health Organization et. al., ___ U.S. ___; ___ S.Ct. ___; __L.Ed. __ (2002)(19-1392), the U.S. Supreme Court overruled its prior holdings in Roe v. Wade, 410 U.S. 113 and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 that had set precedent for a constitutional right to abortion. In light of this decision, the states are now free to determine whether abortion will be a crime or a right within its borders.
WHAT IS THE HOLDING IN DOBBS V. JACKSON?
Mississippi’s Gestational Age Act provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform… or induce an abortion of an unborn human being if the probable gestation age of the unborn human being has been determined to be greater than fifteen (15) weeks.” Jackson Women’s Health Organization, an abortion clinic, challenged the law in federal court on the basis that it violated the constitutional right to abortion established by the U.S. Supreme Court in Roe v. Wade and Planned Parenthood v. Casey. The U.S. District Court enjoined enforcement of the law and the U.S. Court of Appeals upheld the injunction.
In a 6-3 vote, the U.S. Supreme Court reversed the U.S. Court of Appeals and overturned the precedents set in Roe v. Wade and Planned Parenthood v. Casey. Justice Alito delivered the majority opinion of the Court:
- “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Slip op. at 5.
- “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.” Slip op. at 5.
- “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Slip op. at 6.
The decision was controversial and attacked by the dissenting justices for undermining stare decisis since the fundamental right to abortion had been on the books for nearly 50 years. They also call out that this decision is a harbinger of a future attack on other fundamental rights such as the right to contraception (Griswold v. Connecticut) and the right to same-sex marriage (Obergefell v. Hodges). The majority countered and said it will not hesitate to review and correct an incorrect interpretation of the Constitution when appropriate.
With the fundamental right to abortion cast aside, the individual states and their individual legislatures and courts will decide abortion laws.
MICHIGAN’S ABORTION LAW CODIFIED IN STATUTE
In 1931, the Michigan Legislature enacted the following anti-abortion statutes:
- “Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.” MCL 750.14.
- “Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor.” MCL 750.15.
Even after the Roe decision was enacted in 1973 to suspend enforcement of the anti-abortion statutes, they were never repealed by any successive legislature and remain on the books today. The Dobbs decision lifts the ban on enforcement and makes these statutes relevant again.
PRELIMINARY INJUNCTION CURRENTLY BLOCKS ENFORCEMENT OF MICHIGAN ADOPTION LAWS
In Planned Parenthood of Michigan v Attorney General of the State of Michigan, Case #: 22-000044-MM, the Michigan Court of Claims granted a preliminary injunction on May 17, 2022 that temporarily prevents the State of Michigan from enforcing its abortion laws. Plaintiffs Planned Parenthood of Michigan and abortion provider Dr. Sarah Wallett filed suit on April 7 arguing that these abortion ban statutes are unconstitutionally vague and violates the rights to liberty, bodily integrity, equal protection, and privacy under the Michigan Constitution and state civil rights laws. Ultimately, the plaintiffs are seeking a permanent injunction of these laws and this preliminary injunction is only in place until the litigation is resolved.
In light of the Dobbs decision, Governor Whitmer filed a motion in the Michigan Supreme Court on June 24, 2022 requesting that the state’s highest court expedite and immediately decide if Michigan’s state constitution protects the right to abortion (In re Executive Message Of The Governor Requesting The Authorization Of A Certified Question, Supreme Ct. No. 164256). This is still in the process of being scheduled.
As of June 27, 2022, the preliminary injunction against the laws banning abortion in Michigan remains in effect. For now, the anti-abortion statutes are currently unenforceable. For more information and updates, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak for assistance today.