Nessel: I’d never enforce Michigan abortion ban or let 'women be butchered'

Jonathan Oosting
The Detroit News
Attorney General Dana Nessel

Lansing — Michigan Attorney General Dana Nessel said Tuesday she would not enforce a state abortion ban if federal protections are overturned, and Gov. Gretchen Whitmer said she would veto any new anti-abortion legislation that reaches her desk.

The first-term Democrats promised a dramatically new approach to abortion and reproductive rights in Michigan during separate speeches at a Planned Parenthood of Michigan conference in Lansing.

“You’ve got a powerful backstop in a veto from my office,” Whitmer said. “But the goal is not just to stop bad things from happening. It’s to set an agenda that respects women and girls and family planning.”

Nessel, the state's top law enforcement officer, pledged to ignore an existing state law banning abortion if the U.S. Supreme Court reverses its landmark 1973 Roe v. Wade decision, a scenario she said is now “likely” because of new justices appointed by President Donald Trump.

“I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy,” Nessel said to applause.

Genevieve Marnon, legislative director for Right to Life of Michigan, said she was dismayed but not surprised by Nessel’s comments.

“But the bottom line is, she is not above the law,” said Marnon, noting Michigan voters rejected an abortion legalization initiative in 1972 by more than a 20 percentage point margin.

“We have a Supreme Court decision that says it’s enforceable but for Roe vs. Wade, and I don’t think the attorney general should be able to pick and choose which laws get enforced.”

Enforcement in most cases would likely fall to county prosecutors, so Nessel’s position on the law may not have a huge impact, Marnon added.

Michigan has had an abortion ban on the books since 1846, including a 1931 version that would be reactivated if the U.S. Supreme Court overturns Roe, which it has not yet taken any steps to do. As a candidate, Whitmer proposed repealing the law, but it won't happen this term given Republican control of the Legislature.

Nessel made similar non-enforcement claims on the campaign trail and acknowledged she has been asked, "How can you do that, not enforce the law?" But she dismissed the question by accusing former Republican Attorney General Bill Schuette of ignoring unspecified environmental regulations during the past eight years.

If he can do that, “well then, I think I can go four or maybe eight years without sending women to be butchered in back allies,” she said.

Peter Henning, a law professor at Wayne State University, said Nessel’s comments raise interesting questions that are only hypothetical at this point since abortion remains legal nationwide under the Roe v. Wade precedent.

“Prosecutors have a great deal of discretion as to what laws they choose to charge and which they don't,” he said. “So if someone was upset, I don’t know how you could force (Nessel's) hand."

County prosecutors have similar discretion, he said, but their authority is ultimately derived from the state.

Legislative repeal of the state's abortion ban is unlikely “any time soon" given political dynamics in Lansing, "but the Legislature can’t force the attorney general to prosecute a case," Henning said. “That is within the attorney general’s authority to decide what to prosecute and what not to.”

Right to Life is backing new legislation to ban a "dilation and evacuation" procedure it calls “dismemberment abortion,” but it expects Whitmer would veto that legislation if it reaches her desk.

Former Gov. Rick Snyder, a Republican, also vetoed some anti-abortion legislation, but Right to Life of Michigan used a petition drive to get around him and enact an abortion insurance ban that Whitmer had blasted as “rape insurance” legislation while serving in the state Senate.

In her remarks Tuesday, Whitmer noted Ohio Republican Gov. Mike DeWine last week signed a controversial "heartbeat" abortion ban bill after a similar measure passed in Georgia, frustrating liberal filmmakers Whitmer has invited to Michigan instead. 

The governor celebrated 2018 victories by Democratic female candidates in Michigan and suggested the party could have reclaimed control of the state House and Senate were it not for gerrymandering by Republicans who drew current legislative district boundaries in 2011.  

“We need to be grateful for the outcome that we had, but we cannot for one second think our work is done,” Whitmer said.

Whitmer, Nessel and Secretary of State Jocelyn Benson make up an “amazing" "triumvirate of women that protect us all in the state,” Planned Parenthood of Michigan CEO Lori Carpentier said during an introduction.

Nessel has withdrawn Michigan from a series of abortion-related lawsuits that Schuette had joined, and she has signed Michigan on to others seeking to protect existing rights.

Acting in collaboration with Whitmer, Nessel last month joined a suit challenging a Trump administration rule that would bar organizations such as Planned Parenthood that provide abortions from receiving Title IX funding to cover things like sexually transmitted disease prevention, cancer screenings and contraception.

The rule could jeopardize about $7 million in funding for Michigan groups, Nessel said.

“Let’s resist,” the attorney general said. “Let’s continue to fight back together, because without reproductive freedom, never again will we really be able to call ourselves the land of the free.”