LANSING, Mich. — Gov. Gretchen Whitmer on Wednesday signed an executive order blocking the extradition of individuals who travel from states' outlawing abortion to Michigan to obtain an abortion.
The order also would block the extradition of any Michigan abortion providers who assisted in the abortion.
Whitmer said in a statement that the executive order would assure Michigan visitors have access to abortion "without fear of extradition."
"That is why I signed an executive order today refusing to cooperate with out-of-state law enforcement seeking to punish women for seeking health care,” Whitmer said. “ I will stand up for all women, even if their local and statewide leaders refuse to. Michigan must remain a place where a person’s basic rights are preserved."
No state, including those with abortion bans on the books, currently has a law that would bar an individual from traveling out-of-state for an abortion or stop an out-of-state doctor from performing an abortion on a traveling patient. But there have been states exploring the idea of putting such laws in place, including in Missouri.
U.S. Supreme Court Justice Brett Kavanaugh, in a concurring opinion in the Dobbs case, voiced skepticism over states' ability to stop residents from traveling elsewhere for an abortion.
"In my view, the answer is no based on the constitutional right to interstate travel," Kavanaugh wrote.
But his wording in the opinion was "very limited," said David Cohen, a professor of law at Drexel University Thomas R. Kline School of Law.
"He really just talked about the right of the patient to travel," Cohen said. "He didn’t talk about the right of the person to drive the patient. He didn’t talk about the right of the provider who cares for the patient who travels."
Michigan's uniform criminal extradition act says it is the "duty of the governor" to "have arrested and delivered up" to the executive of another state an individual charged with treason or a felony commissioned in the requesting state if that individual has fled to Michigan. The extradition request must include a certification that "the ends of justice require the arrest and return of the accused to the demanding state for trial."
But the law leaves it up to the discretion of the governor to extradite individuals who committed an alleged crime in a state other than the requesting state.
Whitmer's Wednesday order said specifically that the office of the governor would decline to assist in the extradition of a person to or from Michigan if charged with providing or obtaining a "reproductive health-care services, including abortion."
But the order, keeping in line with the U.S. Constitution and state law, noted that the ban on extraditions would not apply if the person fleeing to Michigan was "physically present in the requesting state at the time of the commission of the alleged offense."
In that sense, Whitmer might be required to extradite a Michigan doctor who travels to Texas to perform an abortion and then flees back to the state. But she is not required and now has indicated she will not extradite a doctor who performs an abortion in Michigan on a traveling Texas patient, Cohen said.
"The locals may be the ones who implement the extradition," Cohen said, referring to county prosecutors or local law enforcement. "But the governor is the one who decides whether to extradite."
Even if Michigan law didn't explicitly provide discretion on extraditions for out-of-requester-state crimes, governors could try to exercise discretion on an extradition request based on what they saw as a potentially unconstitutional law underpinning the charges, said Mark Rosen, a professor of law at the Chicago-Kent School of Law.
In this case, Rosen said, "there’s a plausible argument that that would be unconstitutional because it would violate the right to travel.
"But that actually runs up against some case law, which has been not firmly decided, but has tried to characterize the governor’s discretion as being very, very limited," Rosen said.
Whitmer's Wednesday order noted previous directives to state departments that stopped them from cooperating or assisting out-of-state authorities with an investigation related to the provision of any "legal reproductive health care."
"I cannot in good conscience participate in other states' efforts to make it a crime to exercise a fundamental right or to punish health-care providers," Whitmer wrote in the order. "A woman’s health, not politics, should guide life-changing medical decisions."
Michigan's longstanding, but little enforced, abortion ban currently is blocked from enforcement by a May preliminary injunction issued in a suit brought by Planned Parenthood of Michigan seeking to overturn the state's abortion ban. If the judge's injunction is overturned, Michigan's ban is one of the strictest in the country, banning abortion except for the life of the mother and without exemptions for rape or incest.
Besides Planned Parenthood's case, Whitmer has filed suit in Oakland County Circuit Court also seeking a court order recognizing a state constitutional right that would nullify the state's abortion ban. When she filed the case in April, Whitmer asked the Michigan Supreme Court to immediately rule on her case and leapfrog the decisions and appeals expected at the lower court levels.
The state Supreme Court asked for more information on the case but has yet to say whether it will act on Whitmer's request.
While the Planned Parenthood and Whitmer cases move forward, the GOP-led Michigan Legislature, Michigan Catholic Conference, Right to Life of Michigan and other anti-abortion groups are attempting to overturn the current preliminary injunction on the state abortion ban and ultimately dismiss the cases brought against the state law.
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