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Opinion | Taking the Fight for Safe, Legal Abortion to the States

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By Gretchen Whitmer

Ms. Whitmer is the governor of Michigan.

As I read the U.S. Supreme Court’s draft opinion overturning Roe v. Wade, I was devastated. It was shocking to see, laid out in cold legalese, the blatant ideological reasoning gutting the constitutional right to abortion.

I understand the frustration that many are feeling. I feel it too. Roe has been the law of the land for 49 years, nearly my entire lifetime. But it may not be the law of the land for my daughters. Many of us feared this day would come, which is why last month, I filed a lawsuit and, drawing on authority granted to me as governor, asked the Michigan Supreme Court to immediately resolve whether our state constitution includes the right to access abortion.

As a woman born and raised in Michigan, I have a moral obligation to stand up for the rights of the nearly 2.2 million Michigan women who will lose their right to make decisions about their own bodies if Roe falls. Michigan, like several other states, has a law criminalizing abortion that is still on the books. It was enacted in 1931 and would make our state home to one of the most extreme anti-choice policies in the country once this decision from the court is officially released. If Roe falls, abortion will become a felony in Michigan, without exceptions for rape or incest.

My argument is predicated on the due process and equal protection clauses in our state constitution. The due process clause of the Michigan Constitution protects the right to abortion in the same way that the United States Constitution does per Roe, and the equal protection clause prohibits the state from adopting laws based on paternalistic justifications and overbroad generalizations about the role of women in the work force and at home. Other state constitutions, including the constitutions of Kansas, Montana, Alaska and Florida, have already been interpreted to protect the right to abortion.

I hope that my novel lawsuit can offer a course of action for others to follow. I encourage my fellow pro-choice governors, state legislators, private sector leaders and citizens to use every available tool to protect access to safe, legal abortions. Given that Michigan has a Republican-controlled legislature,I am not optimistic that I — as a pro-choice Democratic governor — can get a bill passed to to overturn the 1931 Michigan law.

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