As news of the U.S. Supreme Court’s opinion in Dobbs v Jackson Women’s Health Organization was announced Friday, the Democratic governors of Wisconsin and Michigan said they will fight to continue to allow women to make their own health-care decisions, including allowing abortions in their states, despite ancient state laws prohibiting health-care workers from performing abortions.
“We will fight this decision in every way we can with every power we have. As people in Wisconsin and across our country make their voices heard in the days and months ahead, we will do so peacefully and without violence,” Evers said in a statement Friday.
While the opinion could mean women in Wisconsin and Michigan will lose their access to legal abortion in those states until new state laws are passed, Illinois could see more demand for abortions because Illinois statute protects women’s right to choose.
What the Supreme Court decided
In Dobbs v Jackson Women’s Health Organization, the Supreme Court decided the Constitution doesn’t explicitly cover abortions.
While in Roe v Wade, the U.S. Supreme Court said the U.S. Constitution protected a woman’s freedom to choose an abortion, the court reversed that opinion in Dobbs and remanded decisions about abortion rights to the states.
The opinion, which upholds a Mississippi law banning abortion after 15 weeks of pregnancy, said the U.S. Supreme Court erred in Roe v Wade by applying the 14th Amendment because the Constitution shouldn’t be construed to cover the topic of abortion.
The 213-page opinion and dissents by three justices can be read online at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Legislators elected by the people in their states should determine abortion laws at the state level, according to the majority opinion, written by Justice Samuel Alito.
Justices Clarence Thomas, Neil Gorsuch, Brent Kavanaugh and Amy Coney Barrett voted with Alito to remand the decision on abortion rights to state legislatures, while Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
In writing for the majority, Alito said, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”
In the 1992 Planned Parenthood v Casey case, the Supreme Court upheld abortion rights and extended them by invalidating a spousal notification requirement and by replacing a strict standard of review with an undue burden standard, making unconstitutional obstacles placed in the path of women seeking an abortion.
Before Friday’s Supreme Court decision, the fight to preserve women’s choice in health care already had begun in Michigan, where Gov. Gretchen Whitmer on May 25 issued an executive directive instructing agencies to increase protections for reproductive healthcare in Michigan and continue to offer residents information about the cost and availability of legal abortion care.
Many states, including Wisconsin and Michigan, have ancient laws banning all abortions and making it a felony for health-care providers to perform them. The United States doesn’t have a law allowing abortions, and by remanding the Dobbs case to the state level, the Supreme Court said it won’t consider the details.
When a question arises over whether a state law can be enforced, it is the role of the courts to decide, but the Supreme Court justices said the states, not the federal courts, are better suited to address abortion statutes. This is a departure from Roe v Wade, which was appealed to the U.S. Supreme Court. The opinion in Roe v Wade became a precedent for state courts to follow and ancient state laws banning abortions became obsolete and unenforceable.
Whether these historical statutes will take effect while state legislatures reconsider them is uncertain.
To clarify how Michigan’s Supreme Court will interpret the Dobbs’ opinion, Whitmer filed a motion requesting the Michigan Supreme Court resolve the uncertainty over whether Michigan’s 1931 abortion ban violates the Michigan Constitution.
Michigan’s 1931 law
A 1931 Michigan law states: “Any person who shall willfully 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.”
A motion filed on Whitmer’s behalf by Deputy Attorney General Christina Grossi said, “By holding that the federal Constitution does not protect the right to abortion, Dobbs has deepened the uncertainty about the enforceable scope of Michigan’s criminal abortion ban.”
Other states are expected to watch this legal request as they determine the best strategy for preserving abortion rights.
Wisconsin Gov. Tony Evers said in a statement Friday, “I will never stop fighting to make sure that every single Wisconsinite has the right to consult their family, their faith, and their doctor to make the reproductive healthcare decision that is right for them, and without interference from politicians or members of the Supreme Court who don’t know anything about their life circumstances, values, or responsibilities.”
The U.S. Supreme Court’s opinion was announced two days after state Republican lawmakers in Wisconsin rejected a repeal of the state’s criminal abortion ban.
The 1849 statute said “Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony” but it makes an exception for doctors who perform abortions to save the life of the mother. It also states, “Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if” mitigating circumstances are involved.
The Dobbs’ decision could send some Wisconsin residents over the border to Illinois, which has a more liberal health-care statute allowing for abortion.
Illinois’ 2019 law
Because of the number of states with old abortion bans on the books that weren’t updated after Roe v Wade in 1973, Illinios Gov. JB Pritzker said Friday he expects to see more people seek abortions in the state. He said Illinois might need to expand its health care capacity to ensure those who wish to receive an abortion can do so.
The Illinois most recent abortion statute, passed June 12, 2019, states:
“This Act sets forth the fundamental rights of individuals to make autonomous decisions about one’s own reproductive health, including the fundamental right to use or refuse reproductive health care. This includes the fundamental right of an individual to use or refuse contraception or sterilization, and to make autonomous decisions about how to exercise that right; and the fundamental right of an individual who becomes pregnant to continue the pregnancy and give birth to a child, or to have an abortion, and to make autonomous decisions about how to exercise that right. This Act restricts the ability of the State to deny, interfere with, or discriminate against these fundamental rights.”
While the U.S. Justices rejected the idea from Roe v Wade that the 14th Amendment provided for women’s right to an abortion, they emphasized their opinion in the Dobbs case “concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”