‘Many women will die’ if Michigan criminalizes abortion, Nessel says

By: - December 22, 2021 2:17 pm

Hundreds rally at the state Capitol for the MI Body MI Choice event on Oct. 2, 2021 | Allison R. Donahue

“My concern is that when I hear these folks running for this office say, ‘I will enforce the law,’ I hope that all of you in this room and on this call will investigate what exactly that means,” Attorney General Dana Nessel said Monday during a roundtable with reporters, when she argued her Republican challengers for AG may criminalize abortion if Roe v. Wade is overturned.

Right now, Roe’s fate hangs in the balance as the conservative-majority U.S. Supreme Court hears oral arguments over a Mississippi abortion law that could kill the flagship 1973 abortion rights ruling.

If Roe is overturned or “substantially gutted,” Nessel said, which she has predicted will be the case since 2019, a Michigan law adopted in 1931 that criminalizes abortions will go into effect.

Nessel is so far facing three Republican opponents for 2022: former state House Speaker Tom Leonard (R-DeWitt), who is running again after losing to Nessel in 2018; state Rep. Ryan Berman (R-Commerce Twp.); and Kalamazoo-based attorney Matthew DePerno, who is known for espousing conspiracy theories and was endorsed by former President Donald Trump in September. 

Leonard, Berman and DePerno did not immediately respond to a request for comment.

Leonard is endorsed by the influential anti-abortion group Right to Life, while Berman voted for a bill prohibiting “dilation and evacuation” abortions in 2019. DePerno announced Tuesday that the anti-abortion group Michigan Heartbeat Coalition is backing his candidacy.

The Michigan GOP convention is scheduled for April 2022.

“There are a litany of laws that are routinely enforced or not enforced by this department, depending on who the individual is who holds the office,” Nessel said Monday.

Attorney General Dana Nessel, Dec. 20, 2021 | Laina G. Stebbins

“I think it’s terrifying in my mind that, after 50 years of women having the ability and the fundamental right to be able to make decisions about their healthcare with their doctor, to know that an individual holding this particular office could and possibly will start to subpoena OB-GYNs and other physicians all around the state to find out what kind of procedures they are performing,” she said.

According to section 750.14, otherwise known as Act 328 of Michigan’s Penal Code:

Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter.

In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.

Simply put, under the 1931 law, whoever performs an abortion for a woman is guilty of a felony unless the procedure is necessary to save the woman’s life. Cases of rape and incest are not included in the exceptions.

For doctors who are found performing abortions and brought to court, Nessel worries that there will be “a battle of the experts” as to whether the abortion actually saved a life, with questions like, “was the woman going to die, or was she just going to be severely injured?”

Nessel also foresees a clear-cut class divide in which pregnant Michiganders will be able to still receive abortions and who will not.

“I think it’s going to create a situation where wealthy women are able to travel out of state to procure abortion services, [while] poor women, especially for women in rural areas and women of color, many of them will attempt to self-abort and many of them will attempt to procure services from people that are not qualified to perform these services. And many women will die,” Nessel said.

“And that scares me a lot.”

In addition to physicians and OB-GYNs possibly being subpoenaed and charged under the recurrence of Act 328, Nessel is concerned that pregnant people could be facing legal consequences for administering their own abortions.

“If you take a look at the law, I think it lends itself to, again, not just a physician being prosecuted, but also a woman who administers that medication through herself,” Nessel said, noting that the 1931 law establishes a felony charge for “any person who shall wilfully administer to any pregnant woman any medicine drug, substance … with intent thereby to procure the miscarriage of any such woman.”

“Since you know that many women actually administer the pill to themselves, I don’t see how you escape the fact that women can be prosecuted. Not just medical providers,” she said.

With this in mind, Nessel said Monday it’s important for voters to know what her GOP opponents plan to do on the issue if abortion rights are gutted.

“I have been very clear that I think it jeopardizes women’s health, safety and welfare by busting down the doors of [physicians’] patients and inspecting what medical procedures they have or have not had,” Nessel said.

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins is a former Michigan Advance reporter. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service.