Gretchen Whitmer files lawsuit to protect abortion rights in Michigan

Michigan Gov. Gretchen Whitmer (D) on Thursday filed a lawsuit to protect the right to having an abortion under the state's Constitution even if the Supreme Court overturns Roe v. Wade.

Driving the news: Michigan has a 1931 abortion ban that criminalizes the procedure in the state that has been dormant since Roe went into effect in 1973. However, the ban is still part of the state's penal code, and now Whitmer is asking the Michigan Supreme Court to officially deem it as unconstitutional and to recognize abortion rights under the state's Constitution.

• This is the first lawsuit filed by a governor to protect abortion access since the Supreme Court signaled it might be willing to weaken abortion rights, according to Whitmer's office.

State of play: Under Michigan's court rules, Whitmer has the authority as governor to ask the state Supreme Court to immediately take the question of the constitutionality of abortion out of the trial court to issue a decision as soon as possible.

Details: In the lawsuit, Whitmer is asking the court to declare that abortion rights are guaranteed under the Michigan Constitution's Due Process Clause, which provides a right to privacy and bodily autonomy.

• The governor is also urging the court to explicitly say that Michigan's 1931 ban violates the state Constitution's due process and equal protection clauses.

Context: Michigan's 1931 abortion ban specifically states that anyone who provides an abortion "shall be guilty of a felony."

• Additionally, if a pregnant person dies while an abortion is being performed, the provider could be found guilty of manslaughter.

Be smart: Pre-Roe abortion bans would not immediately take effect even if Roe disappears, Elizabeth Nash, a lead state policy analyst for the Guttmacher Institute, a reproductive rights research and policy organization, told Axios back in October.

• "It would take some kind of action," Nash said, such as an attorney general issuing an opinion, a state filing a court case, etc.

• For some states, it "might" even be easier to pass a new law prohibiting abortion instead of starting the process to make a pre-Roe ban take effect, Nash noted.

What she's saying: "In the coming weeks, we will learn if the U.S. Supreme Court decides to overturn Roe v. Wade. If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance — including in cases of rape and incest — and deprive Michigan women of the ability to make critical health care decisions for themselves. This is no longer theoretical: it is reality," Whitmer said in a statement.

• "No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan," she added.