By Zachary Gorchow
President of Michigan Operations
Posted: September 7, 2021 2:32 PM

Almost 50 years ago, about one year before the U.S. Supreme Court held that women have the legal right to abortion, Michigan voters overwhelmingly rejected a ballot proposal to rescind the state's longtime law making it a felony for someone to perform an abortion and instead allow abortions at 20 weeks or less of pregnancy.

With the court's Roe v. Wade precedent now hanging by a thread at best with an apparent 5-4 majority of the court allowing a Texas anti-abortion law to take effect and a case out of Mississippi coming before the high court soon that would offer an opportunity to overturn Roe, anticipation about the Michigan impact is building. For those opposed to abortion, they are sensing a 50-year quest to bring back Michigan's ban on abortion, which dates to 1846, is nearing success. For those who support a legal right to abortion, there is great fear about Michigan's law coming back into full force.

The U.S. Supreme Court probably will not rule in the Mississippi case until June 2022, and there's no guarantee it will fully overturn Roe. The court could, for example, uphold the Mississippi law, which bans most abortions after 15 weeks of pregnancy, but avoid a broader overturning of Roe, which might leave the legality of abortion in Michigan unchanged. Or it could overturn Roe entirely, leaving the issue to the states, and bringing Michigan's mostly dormant abortion ban back into effect.

That uncertainty probably means Michigan's abortion ban isn't leaving the books anytime soon. Groups favoring a legal right to abortion might be hesitant to start an initiative petition now when the court has yet to rule. Historically, 2022, with a Democrat in the White House, also would tend to mean more Republicans voting than Democrats, which might make for a questionable electoral climate to put a ballot proposal before voters.

Governor Gretchen Whitmer today reminded voters she is among the strongest elected supporters of Roe and the legal right to abortion with her call on the Legislature to repeal the abortion ban. But she and everyone else knows the Legislature, with its anti-abortion Republican majorities, supports keeping the ban in place and will take no action.

That sets the 2022 elections as the first marker. Democrats will need to re-elect Ms. Whitmer and win control of the Legislature to repeal the abortion ban and pass a law legalizing abortion in Michigan. Watching the Independent Citizens Redistricting Commission redraw the lines, it's apparent that at best, Democrats can hope for a fighting chance to win control of the House and Senate. Democratic dreams of the independent commission virtually assuring control of the Legislature based on their better performance in statewide races are fading fast. The geographic polarization of voters has made the Democratic path to majority in the House and Senate challenging though certainly better than if Republicans were drawing the maps again this year.

There have been exactly four Democratic sweeps of the governor's office and the Legislature in a single election cycle in state history: 1890, 1932, 1936 and 1982. It would take a special confluence of events for it to happen.

That said, if the U.S. Supreme Court fully overturns Roe and abortion becomes a felony again in Michigan for those providing one, the women voters who defined and dominated the 2018 election cycle would be at maximum motivation to turn out and that could upend what the electorate looks like.

If Democrats are unable to sweep control, that leaves supporters of a legal right to an abortion with only one other option: a ballot proposal. They could either seek an initiative petition to amend the mostly dormant statute or a constitutional amendment that would trump the abortion ban in statute.

The 1972 vote will provide no guidance. Only a small minority of current voters in the state were 18 or older and voted in that election. You would have to be 68 or older and lived in Michigan.

How Michigan voters would come down on a new proposal is hard to say. Voters are famously nuanced when polled on abortion. Most say they support Roe. Most also say they support the types of restrictions states have enacted to regulate abortion. Supporters of a legal right to abortion would have to carefully weigh whether to include some of those restrictions if doing so would give a proposal a better chance of passing. That will be a difficult discussion.

Right to Life of Michigan and the Michigan Catholic Conference will be ready to work to defeat such a proposal. The progressive groups that became a force while former President Donald Trump was in office, combined with an ACLU that is far flusher with cash than it was for most of the 50 years Roe has been in place, would be expected to lead the way for the side pursuing legalization of abortion in Michigan in a post-Roe climate, if it happens. Out of state money would pour in for both sides.

It would be an emotional, titanic struggle if it happens.