Abortion power play in Michigan

Michigan Gov. Gretchen Whitmer, a Democrat, on Thursday filed a lawsuit that calls on the Michigan Supreme Court to establish abortion as a constitutional right in the state. The lawsuit asks the court to strike down a long-standing but unenforced pro-life law that dates to 1931 and bans abortion in all cases except to save the life of the mother. That state law could go back into effect if the U.S. Supreme Court overturns the 1973 Roe v. Wade decision that legalized abortion across the country.

Also on Thursday, Planned Parenthood of Michigan sued state Attorney General Dana Nessel, seeking to prevent her office from enforcing the 1931 pro-life law. But defendants in both lawsuits have made it clear they don’t intend to enforce the abortion law anyway.

The defendants in Whitmer’s lawsuit are 13 prosecutors in counties that have abortion facilities. Seven of the 13 on Thursday released a joint statement supporting Whitmer’s lawsuit and dismissing the 1931 abortion statute as outdated: “We believe those laws conflict with the oath we took to support the United States and Michigan Constitutions, and to act in the best interest of the health and safety of our communities,” they wrote, saying they did not intend to enforce the restrictions.

The governor’s lawsuit claims the Michigan Constitution “guarantees the right to abortion and to equal protection of the laws.” It points to the due process clause, which establishes a right to privacy and bodily autonomy, and the equal protection clause, which prohibits discriminatory laws. The 1931 law, it claims, is “an early twentieth-century sex-based classification based on paternalistic justifications and overbroad generalizations about the role of women in the workforce and in families.”

The pro-life law on Michigan’s books simply states that any person who intentionally causes a pregnant woman to miscarry “shall be guilty of a felony,” unless the person did it to preserve her life.

Whitmer filed her lawsuit in the Oakland County Circuit Court but is using her executive powers to fast-track to the Michigan Supreme Court the question of whether or not the state constitution establishes a right to abortion.

Responding to the Planned Parenthood case, Nessel told The Detroit News she had no intention of defending the state’s law in court. “I don’t want to use the resources of my offices and I don’t think I should be made to use the resources of my office to enforce a law that I know will result in women dying in this state,” she said. Nessel, who is also a Democrat, has already said she wouldn’t enforce the law if it were to go back into effect.

According to the Michigan Family Forum, pro-life legislators and Right to Life of Michigan are examining their options to defend the law if Nessel does not.

In a statement, Right to Life of Michigan said the governor’s move came as a surprise. A coalition of pro-abortion groups is currently collecting signatures to place an amendment on the November ballot that would add a right to abortion to the state constitution. “Governor Whitmer is contradicting herself by asking the Supreme Court to find a right to abortion while supporting a petition that is seeking to create a right to abortion,” said the pro-life group’s president, Barbara Listing.

Listing points to a 1997 Michigan appeals court ruling that stated “neither application of traditional rules of constitutional interpretation nor examination of Supreme Court precedent supports the conclusion that there is a right to abortion under the Michigan Constitution.” That right, the court concluded, rested solely on the U.S. Supreme Court’s decision in Roe v. Wade. The state Supreme Court allowed the 1997 ruling to stand.