Democrat Michigan Governor Gretchen Whitmer and state Attorney General Dana Nessel have initiated a coordinated attack on the state’s longstanding law restricting abortions in anticipation of the possible reversal of Roe v. Wade.
The U.S. Supreme Court is currently considering a case arising from Mississippi’s recent ban on abortions after the 15th week of pregnancy that expressly calls on the court to overturn the 1973 decision that prevents states from regulating almost all abortions before medical viability. The final ruling in that case is expected by early summer.
The first part of the attack was launched last week when Whitmer filed a lawsuit designed to obtain a judicial declaration that abortion is a right protected in the state by the Michigan constitution.
The second part began the same day when an obviously friendly lawsuit was filed by Planned Parenthood against Nessel in her official capacity as state attorney general.
The Planned Parenthood lawsuit seeks to block Michigan from enforcing the law it enacted in 1931 restricting abortions. In a transparent move in coordination with the abortion industry giant, Nessel called a press conference the same day the case was filed to announce that she intends to refuse to defend the state law “unless or until she is ordered by a court” to do so.
Nessel campaigned for her job by promising that she would not enforce Michigan’s abortion ban in the event that Roe is ever overturned. Her political position is in direct conflict with her ethical duty as an attorney to represent her client, in this case the people of Michigan through the state’s legally enacted statute. The rules provide that an attorney may not represent a client when the representation is “materially limited by the lawyer’s own interests.”
Nessel apparently is claiming that her refusal to defend the state’s abortion law or to prosecute any person who intentionally violates it is covered by her “prosecutorial discretion.” That doctrine allows prosecutors to independently determine if formal charges and trials are proper in individual cases but has not been interpreted to mean a prosecutor may simply nullify a legally enacted law. The decision of what laws to enact or repeal lies entirely with the legislative branch.
The Michigan Supreme Court ruled soon after the ruling in Roe that the statute in Michigan expressed the will of the people and unless the legislature decided otherwise, abortion would become automatically illegal again in Michigan if Roe is ever overturned.
Whitmer, Planned Parenthood, and Nessel have conspired to present litigation to the now highly-liberal state supreme court giving it the opportunity to make a decision that would preemptively invalidate the state’s existing statute before Roe is overturned. The people of Michigan and the state legislature may find it necessary in the near future to take affirmative steps of their own to protect the will of the people.