Governor Gretchen Whitmer signed an executive directive Wednesday telling state agencies not to cooperate with any other state or authority attempting to prosecute anyone who obtains, provides or assists with obtaining an abortion or other forms of reproductive health care that is legal where the care was provided.
Whitmer said in a statement that this is in preparation for the “very real possibility” that if Roe v. Wade is overturned, Michigan’s dormant 1931 law banning abortion even in cases of rape or incest and criminalizing doctors and nurses may go back into effect. There is a temporary injunction in place blocking enforcement of that dormant ban.
The directive, effective immediately, additionally calls on departments and agencies to:
- Review aspects of reproductive health care that fall within their jurisdiction and identify and assess potential opportunities to increase protections for reproductive health care, consistent with applicable law.
- Provide a report to the Executive Office of the Governor within 30 days detailing how they will increase choices available on mental, physical and reproductive health, ensure care for those undergoing miscarriages, protect the privacy of individuals seeking health care and provide safety for health care providers.
It also stipulates that when departments communicate directly with the public on reproductive health matters they must:
- Provide information on the costs and availability of reproductive health care
- Increase public awareness on the availability and safety of different forms of contraception.
Barbara McQuade is professor at the University of Michigan Law School. She said it appears to her that Whitmer is trying to have the state well positioned for any opposition to those seeking to obtain abortions or contraception and prevent them from using the machinery of state government to bring criminal actions against providers and patients.
“What it says is that it's going to protect overreach from other states that are trying to get into our state to try to criminalize contraceptive care, or abortion care,” McQuade said. “But I think the language is limited enough that it only relates to procedures that were lawful, where they were obtained. And so I think it is a careful effort to balance the need to protect reproductive health care with the lawful powers that the governor has.”
“No matter what happens in D.C., I am going to fight like hell so every Michigander can make decisions about their own body,” Whitmer said in a statement. “However we personally feel about abortion, health, not politics, should drive important medical decisions. A woman must be able to make her own medical decisions with the advice of a health care professional she trusts. Politicians should not make that decision for her.”
McQuade gave the hypothetical of someone from Texas — where a law is in place preventing individuals from obtaining abortions after about six weeks of pregnancy — traveling to Michigan to obtain an abortion. She said Texas state authorities could send subpoenas to the state of Michigan to get licensing information about the abortion provider. But this executive directive, she said, would tell Michigan’s licensing authority not to comply with that request because the procedure was lawful where it occurred.
“Now, I suppose you could see some sort of lawsuit challenging that decision by the Michigan licensing agency to say that they need to honor requests from other states,” she said. “And I guess that's how these issues might end up in court.”
This comes as Whitmer and other state officials have already taken measures to get ahead of Roe v. Wade getting overturned after a leaked draft opinion from the Supreme Court shows the conservative majority ready to overturn Roe v. Wade.
Whitmer is asking the Michigan Supreme Court to bypass lower courts and declare that Michigan's 1931 law criminalizing abortion violates privacy protections in the state Constitution.
The Michigan Court of Claims granted a preliminary injunction in a lawsuit filed by Planned Parenthood of Michigan and Dr. Sarah Wallet against Attorney General Dana Nessel temporarily blocking the enforcement of the 1931 law.
“It is incumbent upon those of us who hold public office to exercise the full authority of our positions to extend support and protection for women in our state— and our country,” Nessel said in a statement. “That is why I have made clear that I will not use the resources of my office to enforce or defend Michigan’s 1931 statute criminalizing abortion.”
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