Michigan's 1931 abortion law: Who could be prosecuted if Roe v Wade is overturned

Almost a century ago, Michigan lawmakers in Lansing voted in favor of Act 328 of 1931. In that act, it revised and codified many acts as illegal. From adultery to homicides to horse racing and even abortion – the 1931 act defined what was illegal in Michigan and the penalties people could expect.

Many of those laws enacted were later repealed. For instance, it was once illegal in Michigan to play excerpts of the "Star Spangled Banner" unless you played it in its entirety. That was repealed in 2016. Other laws, including adultery, are still a felony in the state.

Included in the 1931 act was Chapter III, section 14 and 15, which made it illegal in Michigan to have an abortion. The law states that "Any person who shall willfully administer to any pregnant woman any medicine, drug, substance or thing whatever…with intent thereby to procure the miscarriage of any such woman…shall be guilty of a felony…"

In other words, if the U.S. Supreme Court does ultimately follow through with the draft to overturn Roe v. Wade, doctors could be arrested, tried, convicted, and sentenced to prison time on a felony charge. According to FOX 2's Charlie Langton, the felony would be punishable by a mandatory sentence of one year in prison.

Additionally, if the woman in the doctor's care were to die due to the abortion, the doctor could then be charged with manslaughter, punishable by up to 10 years in prison.

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According to the 1931 law, abortions are legal in the state if they are necessary to "preserve the life of such woman." The law does not allow for the exclusions of pregnancies if a woman is raped or is the victim of incest.

All of that is included in section 14. The next section, 15, makes it illegal to sell drugs to induce an abortion. That means pill commonly referred to as ‘The morning after pill’ or ‘Plan B’ would be illegal:

"Selling drugs, etc., to produce abortion—Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor," the law reads.

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The second paragraph of the section would also require that drugs that can be used for abortion may be sold by pharmacists, but the business must keep record of the buyer. That record would include the name, date, kind, and quantity, plus the name and residence of the physician prescribing the pills.

Current Michigan Attorney General Dana Nessel has said she will not prosecute any cases using this law.

"Even if this law remains on the books, it's not going to be prosecuted by my department - not as long as I'm attorney general," she told FOX 2 in April.

For Nessel - it's not just a matter of law - it's a matter of life. When she was pregnant with triplets nearly 20 years ago - her babies weren't growing - and were in danger of dying.

"I was told by my doctor that really the only chance of me being able to carry these babies to the point of viability, would be if I aborted one of them," Nessel said. "It would give the other two at least a chance of survival."

Nessel is up for election this fall and her GOP challenger, Matt DePerno, said in March that he would prosecute all abortions.

"I will always protect the lives of the unborn," DePerno said.

DePerno secured backing from Michigan Republicans in April after being endorsed by former President Donald Trump.

President Joe Biden on Tuesday called the draft a "radical" opinion. He also warned that other rights including same-sex marriage and birth control are at risk if the court follows through. 

Speaking to reporters before boarding Air Force One, Biden said he hoped the draft wouldn't be finalized by justices, contending it reflects a "fundamental shift in American jurisprudence" that threatens "other basic rights" like access to birth control and marriage.

He added: "If this decision holds, it’s really quite a radical decision." He said the "basic fairness and the stability of our law demand" that the court not overturn Roe.