Whitmer says she'll 'fight like hell' for abortion access in Michigan after court leak

Washington — Gov. Gretchen Whitmer said her work challenging Michigan's 1931 ban on abortion in state court was "more important than ever" after a leaked draft opinion showed the U.S. Supreme Court was poised to overturn the landmark Roe v. Wade decision.

"I’ll fight like hell to protect abortion access in Michigan," the Democratic governor tweeted late Monday night in response to the news. 

The leaked document, written by Justice Samuel Alito, jostled the world of Michigan politics Tuesday as Republicans celebrated a potential judicial victory they've sought for decades and Democrats predicted opposition to the looming decision would spur wins for their side in November's pivotal election.

Asked if the decision would cause a blue wave, Sen. Rosemary Bayer, D-Beverly Hills, responded, "I know it will. I will be in the front of the wave. ... We can already feel the swell today."

Bayer said she had an abortion when she was 29 years old. It saved her life when she had an ectopic pregnancy, she said.

A draft majority opinion circulated within the court in February and obtained by Politico said the 1973 ruling, Roe v. Wade, which guaranteed women constitutional protections for abortion rights, was "egregiously wrong from the start," Justice Samuel Alito wrote. 

“We hold that Roe and Casey must be overruled,” Alito said in the draft opinion. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

It's unclear whether changes have since been made to the draft or if justices have since changed their votes. The High Court's opinions are not official or final until published.

If Roe is overturned, experts have said Michigan likely will revert back to a 1931 law, known as Act 328, that makes abortion a felony in the state, with no exceptions for rape or incest.

Genevieve Marnon, legislative director for Right to Life Michigan, said she was cautiously optimistic about the High Court's draft ruling. She acknowledged Monday that the situation may have changed since it was written, but she considered what she had seen to be a win.

"If ultimately Roe is overturned, we will be celebrating tremendously," Marnon said. "Those are unborn lives in Michigan and everywhere that will be saved."

Celebrating 'the great victory'

Michigan state Rep. Steve Carra, a Republican from Three Rivers, offered his colleagues food from Chick-fil-A, which he described as "God's chicken," Tuesday morning to "celebrate" the leaked draft opinion.

"Our office has God’s chicken (and coffee) ... to celebrate the protection of babies’ lives. Will go fast! #babylivesmatter," Carra wrote in the email.

In a separate Facebook post, Carra added that he was celebrating "the great victory from last night."

Michigan Attorney General Dana Nessel, a Democrat, repeatedly has said she would not enforce the 1931 law, banning abortions. Nessel has argued that doing so would “drive women to back alleys again."

"I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy," said Nessel in 2019, suggesting that doing so would be "sending women to be butchered." 

Oakland County Prosecutor Karen McDonald on Monday issued a similar promise: “If Roe v Wade is overturned, I will do everything in my power to protect the over half a million women in Oakland County and their right to make choices over their own bodies."

Democratic lawmakers slammed the draft as portending "devastating" effects for women in Michigan and across the country.

"If tonight’s news is true, Michigan’s 1931 state law banning abortion would snap back into effect, making any abortion illegal in our state — even if the mom will die, or if she was raped by a family member. No exceptions," Democratic U.S. Rep. Elissa Slotkin tweeted.

"My poor mother is turning over in her grave. The House has already voted to codify Roe — let all Senators be on record on this one in an up or down vote."

Rep. Lisa McClain, R-Bruce Township, tweeted that overturning Roe would "save millions of innocent, unborn babies. I pray the Supreme Court makes it official and formally overturns this attack on the unborn."

Republican U.S. Rep. Bill Huizenga, R-Holland, said if true, the news is the "correct decision."

"This unprecedented leak of a draft ruling is an effort to overtly inject politics into the court itself. This individual should not be celebrated. They should be held accountable for their egregious breach," Huizenga said. 

"I am praying for the safety of all the Justices during these extraordinarily challenging and unprecedented times."

Foreseeing a 'disastrous outcome'

Whitmer and Planned Parenthood filed separate lawsuits in Michigan courts last month to strike down the state's abortion ban.

"Though we are sorely disappointed, we are not surprised as we have anticipated this outcome. It’s a disastrous outcome for every person in our country," Nicole Wells Stallsworth, executive director of Planned Parenthood Advocates of Michigan, said in a statement. "The fact remains that abortion bans are harmful, inhumane, and discriminatory. The unfortunate reality is that our fate is now in our own hands.

"If the Court does decide to overturn Roe, it will have signaled that it will not protect us. We are doing everything we possibly can to block abortion bans from taking hold in our State. This doesn’t have to be the final word. Our campaign to enshrine the right to an abortion in the Michigan Constitution is essential, and we must remain vigilant and energized to see it through to the finish because the clock is ticking.” 

Others with Planned Parenthood, including Dr. Sarah Wallett, chief medical officer for Planned Parenthood of Michigan, and Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, noted that as of right now, abortion is still legal and health centers are still open.

"This leaked opinion is horrifying and unprecedented, and it confirms our worst fears: that the Supreme Court is prepared to end the constitutional right to abortion by overturning Roe v. Wade," McGill Johnson said. 

"While we have seen the writing on the wall for decades, it is no less devastating, and comes just as anti-abortion rights groups unveil their ultimate plan to ban abortion nationwide. Understand that Planned Parenthood and our partners have been preparing for every possible outcome in this case and are built for the fight."

A ballot initiative to establish abortion rights in the Michigan Constitution is underway, which U.S Rep. Andy Levin, D-Bloomfield Township, referred to Monday.

"As drafted, this is an egregious, worst case scenario," Levin tweeted. "I hope it serves to wake folks up to what's at stake. Michigan, it's time to get #ReproductiveFreedomForAll on the ballot!!" 

Alito's opinion would overturn a ruling by the 5th Circuit U.S. Court of Appeals, which blocked a Mississippi law that bans nearly all abortions after the 15th week of pregnancy. 

The Circuit Court had ruled that both precedent in Roe and Planned Parenthood v. Casey prohibited states from banning abortions before fetal viability. But Alito in his draft concludes: "The Constitution does not prohibit the citizens of each State from regulating and prohibiting abortion.”

The justices heard arguments in the case in December, and a final decision is expected in the next two months.

State Rep. Laurie Pohutsky, D-Livonia, chair of the Progressive Women's Caucus, said Texas has illustrated what abortion bans look like with people "fleeing" to seek care in other states.

"Michigan’s trigger law banning abortion will leave pregnant people of this state in similar crises," Pohutsky said in a statement. 

"Our task is clear: Amend the state constitution via ballot initiative, overturn the 1931 law and pass the Reproductive Health Act. Abortion is a right, and if we can no longer count on the courts to protect it, we will do it ourselves.”

Reclaim, a Michigan-based nonprofit promoting abortion access, highlighted the urgency of the issue shortly after the leak Monday.

“FIVE ALARM FIRE!!” the group posted on its Facebook page. “It’s time to get to work NOW!!”

The Guttmacher Institute, a pro-choice research group and a leading provider of abortion data, estimates that in 2017, there were 30 facilities providing abortions across Michigan. Overturning Roe likely would mean that all of them would have to end their abortion services, and many of them could close.

News prompts Lansing rally

The news prompted an abortion rights rally at the Michigan Capitol in Lansing late Tuesday afternoon. Daniela Simon said the leaked court opinion and the possibility that Roe could be overturned spurred her to stand in the rain to support abortion rights. The 21-year-old Troy resident hopes to volunteer in the future with Planned Parenthood. 

“When the leak came out, I was with my roommates and we were all just angry, but not really shocked,” Simon said. “We knew that it would probably happen. Now we’re trying to find something to do to help out in any way.”

Lansing attorney Alexis Ringman, 31, joined the crowd outside the Capitol after what she called an “emotional” 24 hours since the leaked opinion was published. 

“I’m questioning not only what it feels like to be a woman in America, but also my career choice with the possible overruling of Roe v. Wade and what that means to practice law when the Supreme Court won’t uphold its own ruling under stare decisis,” she said, referring to the legal principle of observing long-held court precedent. 

Lindsay and Kai Walser joined the Capitol protest with their baby, Theo. 

“As a young woman, I grew up where reproductive rights were a given,” said Lindsay Walser, 33. “Social rights have come so far in the last decade and its heart breaking to see something so fundamental potentially being back-rolled. And I want Theo to grow up in a country that respects all people, especially women, especially minorities.”

Audrey Whipple, 19, attended the Capitol rally with a group of about 10 anti-abortion protesters holding signs showing photos of aborted fetuses.

“We’re here to be the voice for the voiceless that are not able to be present because they’ve been killed,” Whipple said.

mburke@detroitnews.com

hharding@detroitnews.com

Staff Writers Mark Hicks and Craig Mauger contributed.