Facing Planned Parenthood lawsuit, Nessel vows again to not defend 1931 abortion law

AG talks about her abortion that saved the lives of her twin sons

By: - April 7, 2022 1:12 pm

Attorney General Dana Nessel speaks at the Planned Parenthood summit, April 16, 2019 | Susan J. Demas

Despite vowing numerous times that she will refuse to defend a nearly century-old Michigan law that would virtually outlaw abortion rights in the state, Democratic Attorney General Dana Nessel now faces a Planned Parenthood lawsuit that seeks an immediate court order holding her to that promise.

“I didn’t become attorney general so that I could head an office that puts women in a position in which some of them will likely die,” Nessel said during an impromptu virtual press conference Thursday following Planned Parenthood’s announcement.

“I vow then, as I do now, to never utilize this outdated, dangerous, cruel law to prosecute women and their doctors. … Just as I wouldn’t want a prosecutor to make a decision for me, I refuse to make it for others.”

Planned Parenthood of Michigan declined to comment for the story.

Nessel, who supports abortion rights, is up for reelection in November. Three Republicans are vying to challenge her who all oppose abortion rights: former House Speaker Tom Leonard, state Rep. Ryan Berman (R-Commerce Twp.) and attorney Matt DePerno. Republicans will choose their nominee at the April 23 state convention in Grand Rapids.

I was eventually told I would miscarry all three unless I terminated one. ... Because of that procedure, it allowed me to carry the other two babies long enough for them to be born alive. … I can't imagine being robbed with the decision to have my children, but that is ultimately what this law would have done to me personally.

– Attorney General Dana Nessel

Nessel also said that her twin sons are alive today because she made the choice in 2002 to abort a third fetus.

“I was in a small percentage of women who became pregnant with triplets during a pregnancy riddled with massive complications,” Nessel said. “I was eventually told I would miscarry all three unless I terminated one.

“… Because of that procedure, it allowed me to carry the other two babies long enough for them to be born alive. … I can’t imagine being robbed with the decision to have my children, but that is ultimately what this law would have done to me personally.”

Planned Parenthood of Michigan and Dr. Sarah Wallett, a Michigan abortion provider and the group’s chief medical officer, filed a lawsuit Thursday in the state Court of Claims to block enforcement of Michigan’s 1931 felony abortion ban.

The Planned Parenthood suit came just an hour after Democratic Gov. Gretchen Whitmer announced her own lawsuit to preserve legal abortions in Michigan. That suit, filed in the Oakland County Circuit Court, seeks to have the Michigan Supreme Court take up the case to strike down the 1931 law.

Whitmer will be represented by several attorneys from the Department of the Attorney General. However, they will be placed behind a conflict wall and Nessel herself is not involved in any way. Nessel said Thursday that she has no plans to join the suit.

The defendants in Whitmer’s lawsuit are county prosecutors for the 13 Michigan counties with abortion clinics.

All this is taking place while the U.S. Supreme Court deliberates on a case that could overturn Roe v. Wade, with a decision expected by June.

If the landmark ruling is overturned, Michigan’s 1931 law criminalizing abortions in all instances except to save the mother’s life will immediately come back into effect. That 91-year-old law has not been enforceable since the Roe v. Wade ruling in 1973.

“I will not enforce it, and neither will I defend it. I will take no part in driving women back into the dark ages and into the back alleys,” Nessel said Thursday of MCL 750.14, otherwise known as Act 238 of Michigan’s Penal Code.

Abortion rights activists from UltraViolet organize a light brigade outside the U.S. Supreme Court on November 30, 2021 in Washington, DC. On Wednesday, the Court will hear arguments in Dobbs v. Jackson Women’s Health, a case about a Mississippi law that bans most abortions after 15 weeks, long before fetal viability. With the addition of conservative justices to the court by former President Donald Trump, experts believe this could be the most important abortion case in decades and could undermine or overturn Roe v. Wade. | Chip Somodevilla/Getty Images

If Roe is repealed and the 1931 Michigan law is automatically revived, Nessel said she would not defend the law in any lawsuits filed against her regarding Act 238.

Nessel clarified that she cannot be made to enforce the law, as she has prosecutorial discretion as to whether to file charges against someone — a doctor or practice performing abortions, in this case. But a court could theoretically order her to build a conflict wall in her office and have some of the department’s attorneys defend it.

A court could also invite others, like the Legislature, to defend it instead on Nessel’s behalf, but Nessel says she refuses to defend the law in any situation.

Nessel noted that she ran for office four years ago with the understanding that, “one day soon, this day would come. A day when America would be on the cusp of the United States Supreme Court overturning Roe v Wade.”


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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. 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. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).