Nessel questions Planned Parenthood abortion ban lawsuit against her

‘I’ve pledged multiple times that I will not enforce this law,’ AG says

By: - May 4, 2022 4:08 pm

Attorney General Dana Nessel at the Lansing Women’s March, Jan. 18, 2020 | Anna Liz Nichols

The day after the draft decision from the U.S. Supreme Court to overturn Roe v. Wade was leaked, Attorney General Dana Nessel restated that she would not enforce the state’s 1931 abortion ban and blasted the Planned Parenthood lawsuit filed against her.  

There’s a litany of reasons why I believe that for somebody like myself, who believes it’s my job to protect the health, safety and well-being of the 2.2 million women of reproductive age in the state of Michigan, that I will not enforce this law, because I think it will lead to further harm and further death of women in our state,” Nessel said during a press conference Tuesday afternoon. 

The Supreme Court, which has a 6-3 right-wing majority, heard arguments on a Mississippi law banning abortions after 15 weeks in December. A final decision was expected from the court by June, but the draft opinion written by Justice Samuel Alito confirmed the fears of abortion access advocates that the court plans to strike down the 1973 landmark decision in Roe v. Wade.

Nessel said that although abortion isn’t yet allowed in Michigan, she fears that the leak might expedite the decision. 

“I’m sure they’re not going to want this hanging around. so I imagine it’ll come out earlier than was otherwise expected,” Nessel said. 

If Roe is overturned, Michigan revert back to a 1931 state law that criminalizes abortions in all instances unless it is to protect the life of the pregnant woman. This law has stayed on the books for over 90 years, but has been moot since Roe was decided.

Nessel has said since campaigning in 2018 that she wouldn’t prosecute anyone for performing abortions if Roe were to fall. 

I don’t know if there’s any reason why I can’t be trusted to keep to my word on that,” Nessel said. 

But in an attempt to get ahead of the Supreme Court’s decision, Planned Parenthood of Michigan filed a lawsuit last month to block enforcement of the state’s 1931 felony abortion ban, naming Nessel as the defendant. 

“I believe that what Planned Parenthood is trying to do is to go through my office in a way to attempt to get all 83 county prosecutors to be prohibited from enforcement. And I don’t believe that legally that’s appropriate,” Nessel said. “I’ve pledged multiple times that I will not enforce this law, and unless Planned Parenthood just doesn’t believe me and thinks that I’m misrepresenting what my position is, I don’t understand why I would need to stipulate anything.”

Bans Off Our Bodies protest in Lansing on May 3, 2022 | Allison R. Donahue

Instead, Nessel recommends Planned Parenthood focuses on a lawsuit filed by Gov. Gretchen Whitmer, who filed the same day as Planned Parenthood last month, saying she believes it is “the best avenue for relief that they’re most interested in.”

Whitmer’s lawsuit seeks to recognize the right to an abortion under the state constitution and to strike down the state’s 1931 abortion ban law. The governor used her executive message power to ask the state Supreme Court to take up the issue, skipping over the lower courts, and to expedite action on this case. 

“The leaked Supreme Court opinion clearly demonstrates that the threat to abortion access in Michigan is real and imminent and we need relief blocking the 1931 ban as soon as possible,” said Ashlea Phenecie,  spokesperson for Planned Parenthood of Michigan. “Planned Parenthood of Michigan has brought suit against the Office of the Attorney General and we are looking forward  to having  the merits of our claims evaluated and ruled upon by the Court, which has jurisdiction over this matter.”

Nessel said that she asked the GOP-led Legislature to intervene in the Planned Parenthood lawsuit, but they haven’t done so. 

Last week, a House Appropriations subcommittee approved a bill that would allocate $750,000 in state funds to help the Legislature defend the 1931 abortion ban. 

Rep. Greg VanWoerkom (R-Norton Shores), the House Appropriations General Government Subcommittee chair, who sponsored the bill said “it may become necessary if Attorney General Dana Nessel follows through on her pledge to not enforce a Michigan law banning abortion if a U.S. Supreme Court ruling affects Roe v. Wade.”

“I suggest they utilize those funds,”  Nessel said. 

“It seems very odd to me that they would sue me to force me to defend this law when they could be defending it themselves,” she added.

The attorney general said it’s common for prosecutors to use their own discretion in deciding what issues their office prioritizes and where to dedicate funds. For her, prosecuting those who perform abortions creates too great of a risk to pregnant people’s health and wellbeing. 

One scenario she fears if Roe is overturned and abortion becomes illegal in the state, there will be a “substantial increase” in domestic violence and homicide.

Nessel said she has been going around the state talking to domestic violence advocates. 

“I’ve been sort of putting them on high alert, telling them to expect to see an escalation in domestic violence cases and in domestic homicides as a result of this ruling,” Nessel said.

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Allison R. Donahue
Allison R. Donahue

Allison R. Donahue is a former Michigan Advance reporter who covered education, women's issues and LGBTQ issues. Previously, she was a suburbs reporter at the St. Cloud Times in St. Cloud, Minn., covering local education and government. As a graduate of Grand Valley State University, she has previous experience as a freelance researcher for USA Today and an intern with WOOD TV-8.