In the decades since Roe v. Wade, more than a dozen states have passed what we know as “trigger bans”—laws that ban abortion in the first or second trimester, which are currently unenforceable because they’re unconstitutional, thanks to Roe. Additionally, nine states still have abortion bans on the books from before Roe was settled, which haven’t been enforceable for 50 years but are technically still laws.
However, as we know thanks to a leaked draft of an upcoming Supreme Court decision, Roe v. Wade (along with Planned Parenthood v. Casey) is set to be overturned in June of this year. When that happens, all of those currently unconstitutional laws will immediately go into effect—hence the “trigger”—even the ones that might be close to 100 years old.
A judge in Michigan just granted a preliminary injunction suspending one such law, passed in 1931, which bans pretty much all abortions except to save the life of the pregnant parent. According to Chief Judge Elizabeth Gleicher of the State Court of Claims, that likely violates the state’s constitution.
As the Detroit Free Press notes, “Legislative action to repeal the 1931 law is unlikely. Republicans, who largely oppose abortion, currently control both the Michigan House and Senate and are unlikely to send legislation repealing the ban to [Governor Gretchen] Whitmer’s desk.”
But there are other efforts underway to overturn or otherwise block the ban from taking effect. In addition to Gleicher’s injunction, which was granted in a case brought by Planned Parenthood, Governor Whitmer herself has filed a separate lawsuit asking the state’s Supreme Court to overturn the law. Abortion rights activists are also working to get an initiative on the ballot this November that would amend the state constitution to protect abortion.
In the meantime, the state’s Attorney General Dana Nessel has said she would not enforce the law even if it were to go into effect. But she’s up for reelection this fall, and who knows where future AGs might fall on the issue. So constitutionality seems the most permanent route to protecting reproductive freedoms.
As of now, 11 states—Alaska, Arizona, Florida (!), Kansas, Minnesota, Montana, North Dakota, Iowa, Illinois, New Jersey, and Massachusetts—have recognized that their constitutions protect the right to abortion. Hopefully, Michigan is soon added to that list and we’ll be keeping our eye on the other eight states with pre-Roe bans on the books.
(via New York Times, Detroit Free Press, image: Brandon Bell/Getty Images)
