(Source: MIRS.news - Published 04/07/2022) Gov. Gretchen Whitmer and Planned Parenthood Thursday filed two separate lawsuits today to keep abortion legal in Michigan as the country awaits a ruling in Dobbs v. Jackson from the U.S. Supreme Court that could overturn Roe v. Wade, which established legal abortion access across the country. Attorney General Dana Nessel is sitting out one and is a defendant in another.
Whitmer’s suit was filed in Oakland County Circuit Court against 14 county prosecutors. She used her executive authority to ask the Michigan Supreme Court to immediately resolve whether the state Constitution protects the right to abortion.
“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,” Whitmer said in a press release. “This is no longer theoretical. It is reality.”
Right to Life of Michigan President Barbara Listing said the Michigan Supreme Court should dismiss the lawsuit.
“Governor Whitmer is ignoring the voices of Michiganders by bypassing all lower courts and court precedent just as the U.S. Supreme Court did when they decided on Roe v. Wade,” Listing said.
She said the Michigan Supreme Court already refused to hear a case in 1997 based on a precedent set by a 1973 court case called People v. Bricker, which upheld the ban despite being made moot by Roe.
Michigan’s 1931 law criminalizes abortion without exceptions for rape or incest, but the 1973 decision in Roe rendered the state ban unconstitutional and abortion became legal in the state.
Whitmer’s lawsuit asks the court to recognize a constitutional right to an abortion under the due process clause of the Michigan Constitution, arguing the state law banning abortions violates a right to privacy and bodily autonomy. It also asks the court to stop enforcement of the 1931 Michigan abortion ban.
The lawsuit also claims the ban violates Michigan’s equal protection clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.
Nessel, who has authority over the county prosecutors, said she is not involved nor has communicated with the Governor about the lawsuit.
“It seems very inappropriate for me to join the Governor suing the prosecuting attorneys,” Nessel said in a press conference.
Listing wondered why the Governor was going to the high court in light of a circulating petition seeking to enshrine the right to abortion in Michigan.
“This lawsuit is very telling of the progress of the pro-abortion petition and makes us question their status in collecting signatures,” she said.
Nessel said it was because the Dobbs v. Jackson decision by the U.S. Supreme Court could drop any day now, but it did not reflect on the state of the petition.
“If this court makes a determination that these are fundamental constitutional rights in the Michigan Constitution, you don’t want to see a later court say, well we have a different assessment of that,” she said.
She said the petition would enshrine that expressly in the Michigan Constitution.
Michigan Catholic Conference Police Advocate Rebecca Mastee disagreed.
“The right to life for unborn children and its inherent value given by our Creator cannot be reduced to a legal opinion or legislative vote,” Mastee said.
She also cited Bricker as upholding the 90-year-old abortion ban in Michigan.
Nessel, after reiterating that she has put up a wall between herself and the team of lawyers from her office that would be representing Whitmer, said she stands by the Governor in her fight for abortion rights.
She echoed a campaign promise she made, but instead of the bedroom, she said a return to the 1931 law would give prosecutors and politicians “a chair in the doctor’s office” to “have a seat at the table” to determine what happens with the health of women across the state.
“I cannot abide by that,” she said.
Another lawsuit filed by Planned Parenthood of Michigan and a Michigan abortion provider today also created a conflict for Nessel.
The suit, filed in the U.S. District Court against the Attorney General, seeks to block enforcement of the state's abortion ban. It argues the 1931 law violates the rights to liberty, bodily integrity, equal protection and privacy under the state Constitution and civil rights laws, and that the law is unconstitutionally vague.
“I’m an abortion provider, and the care my colleagues and I provide every day to our patients is essential to their ability to lead the lives they choose," said plaintiff Dr. Sarah Wallett. "I joined this suit because it is fundamental to my oath as a physician to do no harm – and being forced to deny abortion care and violating the basic rights of my patients would cause them immense, irreversible harm.”
Nessel echoed that statement during a hastily prepared press conference after the lawsuits were announced.
She told a deeply personal story about her own children who were saved because of an abortion she had. She said the reinstatement of an abortion ban would be horrifying for women and doctors, who in some cases would have to disregard a Hippocratic oath to do no harm to avoid prosecution.
“It is a very scary time to be a woman of reproductive age in this nation right now,” Nessel said.
She pointed to Republican Attorney General hopeful Matt DePERNO as an example of what she was talking about.
She stated that DePerno has promised in a recent debate that there would be no exceptions for abortion if he were elected.
“It is literally the Handmaid’s Tale come to life in this country and I am appalled by it. That’s why I’m determined to vigorously fight on behalf of women in this state,”
The popular show is based off a 1985 dystopian novel by Margaret Atwood where women are forced to have children for a ruling class of men.
Nessel said she would not enforce the law if it came down to brass tacks.
“I didn’t become Attorney General to head an office that put women in a position which some of them would likely die,” she said.
Planned Parenthood is also part of a coalition of abortion rights groups that filed language with the Board of State Canvassers to begin a ballot petition drive for a constitutional amendment designed to protect abortion access in Michigan.
Nessel encouraged people to sign the petition and vote for it in November, because it would override any statute.
“So, there it is, in the Constitution. no one can argue about the legality one way or the other,” she said.
