Michigan Gov. Gretchen Whitmer and her party aim to make this year's statewide election a referendum on abortion. And it's hard to see how anyone can stop them, unless the U.S. Supreme Court surprises everyone by reaffirming the constitutional right to abortion it recognized in Roe v. Wade.
All of the major candidates seeking to unseat Whitmer and Democratic Attorney General Dana Nessel this year are opposed to abortion. But none of them wants to spend their campaign season talking about it.
Faithful Republicans will surely be elated if federal justices use a pending case to uphold Mississippi's newly enacted law criminalizing abortions performed after 15 weeks. The partial ban is a direct challenge to the court's 49-year old ruling in Roe, which struck down state laws criminalizing abortion, and members of the high court's conservative majority signaled in oral arguments late last year that they are keen to abandon Roe's premise that a woman's reproductive rights are constitutionally protected.
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But polling demonstrates that a significant majority of Michigan voters, including some who say they never elect an abortion themselves, support the Roe court's assertion that the government should not intrude on that decision. So Republican candidates who cheer the evisceration of Roe to woo voters in their party's GOP primary (or, in the case of candidates for attorney general, to attract support at this month's Republican nominating convention) may find that their stance a serious liability in November's general election.
If conservative federal justices decide that nothing in the U.S. Constitution precludes states from criminalizing most or all abortions, Michigan could begin prosecuting physicians who perform abortions under a 91-year-old state law that criminalizes the procedure. Although the Roe court's ruling has long barred enforcement of the 1931 law, Michigan legislators have never repealed it.
Democrats are pursuing a two-pronged strategy to make sure that doesn't happen:
Whitmer and other Democratic incumbents are championing a ballot initiative that would enshrine the right to reproductive choice in the Michigan constitution. If supporters meet a July 11 deadline to gather the 425,000 signatures required to certify their petition, it will likely be placed before voters this November, when Whitmer and Nessel will also be on the ballot.
But Whitmer staked an even more personal claim to the abortion rights issue on Thursday, when she filed a lawsuit asking the Michigan Supreme Court to declare that the state constitution already protects the right to perform or undergo an abortion, rendering a 1931 law criminalizing the procedure unconstitutional.
Whitmer wants the state Supreme Court justices to issue a ruling in her favor before the U.S. Supreme Court announces its decision in the Mississippi case it heard late last year. That's extremely unlikely to happen, even if a majority of justices find Whitmer's legal argument persuasive, because the contingency Whitmer wants to guard against — the prospect of Michigan women and patients being charged criminally — is only a theoretical one, at least for now.
Whitmer's critics have also pounced on the contradiction inherent in her two-pronged strategy: If the governor supports a state constitutional amendment guaranteeing the right to an abortion, they argue, she must know her lawyers' argument that Michigan's current constitutional language implies provides such protection is a lot of hooey.
Whitmer's team shrugs off that criticism, countering that the governor's "belt-and-suspenders" approach proves only that she is pulling out all the stops in her quest to protect the right to choose. They say shoring up constitutional language Whitmer believes is already sufficient is a failsafe, not an inconsistency.
Whitmer's record will make it difficult for anyone to argue she's guilty of opportunism. Donald Trump may have discovered his distaste for Roe only after concluding it was a prerequisite for the Republican presidential nomination, but Whitmer has spent her entire career championing abortion rights.
That said, the governor made an extraordinary efforts to secure her position at the front of the abortion rights parade. Her legal initiative was carefully coordinated to support and augment a companion lawsuit in which Planned Parenthood of Michigan seeks to enjoin state prosecutors from enforcing Michigan's 1931 abortion ban, even if the U.S. Supreme Court revives it.
And Whitmer's team was adamant that her own lawsuit be filed first, briefing reporters in advance and making sure her lawyers filed an hour before Planned Parenthood's lawyers did.
Attorney General Dana Nessel, who has supported abortion rights as enthusiastically and consistently as Whitmer, was nevertheless named as a titular defendant in Planned Parenthood's lawsuit, which recognizes the AG as the top law enforcement official to whom any court ruling concerning the 1931 law should be directed. By contrast, Whitmer's lawsuit names county prosecutors as defendants, a concession to whatever irritation Nessel may have felt about being the target rather than the plaintiff in a legal action designed to uphold abortion rights.
Whitmer's two-pronged campaign is an undisguised effort to energize suburban women whose support was critical to both Whitmer's election and that of Rick Snyder, her moderate Republican predecessor. The candidates seeking the Republican nomination to oppose her in November are betting those voters will be more preoccupied with Whitmer's pandemic-era emergency orders, inflation and roads than with the future of abortion.
That might be a safer gamble if the election were held today, because it still hasn't dawned on most Americans that abortion could soon be a felony.
In 2008 and 2012, the men Republicans nominated to be their presidential standard bearers routinely described Roe as settled law, dismissing any prospect of its demise as a fantasy. It wasn't until Trump had the opportunity to appoint three justices skeptical of the argument that abortion is constitutionally protected that Republicans began envisioning a landscape in which the state legislatures they controlled would be free to turn back the clock.
Even now, many female voters haven't registered that the Supreme Court ruling that protects abortion from becoming illegal and inaccessible is in serious danger. Their complacency may yet rule the day, especially If the high court postpones its opportunity to scrap Roe this year.
But right now, it looks as though conservative justices will deliver the prize hard-core opponents of abortion have been wishing for. If they do, a lot of Michigan Republicans may find their own careers doomed by the blowback.
Brian Dickerson is the Editorial Page Editor of the Free Press. Contact him at email@example.com.