Michigan Judge Rules Abortion Ban Violates Women’s Equal Rights, Bodily Integrity and Dignity

Protesters march through downtown Detroit on May 7, 2022—five days after the Dobbs leaked opinion—in support of Roe v. Wade. (Matthew Hatcher / SOPA Images / LightRocket via Getty Images)

On Sept. 7, Michigan Court of Claims Judge Elizabeth Gleicher ruled that the state’s 1931 abortion ban violates the Michigan Constitution because it “would deprive pregnant women of their right to bodily integrity and autonomy, and the equal protection of the law.” Gleicher issued a permanent injunction blocking Michigan’s anti-abortion prosecutors from enforcing the law.

“This is a historic victory for patients and providers in Michigan who have been forced to live under the threat of an archaic criminal abortion ban since the U.S. Supreme Court overturned Roe v. Wade,” said Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America. “By permanently blocking the 1931 law criminalizing abortion, Michigan’s Court of Claims has protected the continuity of care that Michiganders have enjoyed for nearly half a century and ensured that no overzealous prosecutor can come between a patient, their provider, and their health care.”

Planned Parenthood of Michigan and its chief medical operating officer Dr. Sarah Wallett filed the lawsuit challenging the abortion ban in April against Michigan Attorney General Dana Nessel. On May 17, Gleicher entered a preliminary injunction preventing enforcement of the law until a hearing on the merits. Nessel, who has stated she will not enforce Michigan’s abortion ban should it take effect, did not appeal the preliminary injunction.

The Republican-controlled Michigan House and Senate then intervened as defendants in the lawsuit, arguing that abortion was a “medically unnecessary procedure.” The ban made all forms of abortion a felony and had no exceptions for life or health of the patient, nor for pregnancies resulting from rape or incest.

The statute not only reinforces gender stereotypes, but ‘perpetuates the legal, social and economic inferiority of women.

Judge Elizabeth Gleicher, quoting Justice Ruth Bader Ginsburg

In a forceful, 39-page order, Gleicher permanently blocked the law, ruling that the abortion ban violated both the due process and equal protection clauses of the Michigan Constitution. She rejected Republicans’ argument that pregnancy is not an intrusion on women’s bodies, arguing that, “bodily autonomy is inherent to human dignity” and that “eliminating abortion access will force pregnant women to forgo control of the integrity of their own bodies.”

Gleicher explained: “As any woman who has experienced pregnancy and delivery knows, the process is utterly transformative of every bodily function. From early pregnancy through birth, hormonal changes, biochemical adaptations, and the presence of a growing, moving and ultimately exiting fetus take control of a woman’s body, not to mention her mind. … When pregnancy is unwelcome, dangerous, or likely to result in negative health consequences, it is indeed a ‘bodily intrusion.’”

Gleicher concluded, “a law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives—it denies them their dignity. Michigan’s Constitution forbids this violation of due process.”

Gleicher also ruled that the Michigan abortion ban violates women’s equality rights under the Michigan Constitution, explaining the importance of abortion access to women’s lives.

“For some women, the ability to pursue educational or career plans are a central benefit of equal citizenship, and the fundamental rights of bodily integrity and autonomy protect their right to continue along those pathways. For others, pregnancy is much desired, but due to health issues or fetal anomalies, a woman may determine that terminating the pregnancy is the safest option. And many women seeking abortion already have children. For them, concerns about their financial and emotional abilities to take good care of their existing children drive the abortion decision.”

Republican politicians urged Jdge Gleicher to follow the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which argued that abortion bans do not violate the equal protection clause of the U.S. Constitution because “a State’s regulation of abortion is not a sex-based classification.” The Court cited a controversial 1974 Supreme Court decision—Geduldig v. Aiello—where the Court ruled a California disability insurance program excluding pregnancy did not violate the Fourteenth Amendment equal protection clause because the policy did not discriminate between men and women but only between “pregnant and non-pregnant persons.”

To the contrary, Gleicher argued that denying women access to abortion was sex discrimination. “Despite that men play necessary roles in the procreative process, the law deprives only women of their ability to thrive as contributing participants in the world outside the home and as parents of wanted children. [The Michigan abortion ban] forces a pregnant woman to forgo her reproductive choices and to instead serve as ‘an involuntary vessel entitled to no more respect than other forms of collectively owned property,’” quoting Lawrence Tribe.

“In doing so,” she continued, “the statute not only reinforces gender stereotypes, but ‘perpetuates the legal, social, and economic inferiority of women”—quoting Justice Ruth Bader Ginsburg’s opinion for the Supreme Court in United States v. Virginia.

We respect women’s rights in Michigan. This is a home of opportunity and limitless possibility.

Michigan Governor Gretchen Whitmer

Judge Glecher also quoted Justice Sandra Day O’Connor’s opinion for the Supreme Court in the 1992 case of Casey v. Planned Parenthood, noting “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

Gleicher expanded on this point: “Fifty years of reproductive freedom have seen a vast expansion in the number of Michigan women in the professions, politics, and the workplace. By criminalizing abortion, [the Michigan abortion ban] prevents a woman who seeks to exercise a constitutional right from controlling her ability to work or to go to school, and thereby determining for herself the shape of her present and future life.”

Michigan Republicans are likely to appeal the decision, but meanwhile, Michigan voters will have an opportunity to weigh in on the issue after reproductive freedom advocates in the state submitted 753,759 signatures to place on the November ballot a measure that would create a state constitutional right to reproductive freedom. According to a recent poll, 60 percent of likely Michigan voters said they would support a proposed constitutional amendment guaranteeing abortion rights.

Gov. Gretchen Whitmer (D) celebrated Gleicher’s decision. “Today, the courts have ruled once again that Michigan women have the right to make medical decisions with their health care provider and those they trust. To those seeking freedom and bodily autonomy—whether you’re a young professional deciding where to begin your career or a mom trying to take care of the kids you already have, my message is simple: We respect women’s rights in Michigan. This is a home of opportunity and limitless possibility.”

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.