Attorney General Nessel refuses to use office to defend Michigan's abortion ban

Beth LeBlanc
The Detroit News

Attorney General Dana Nessel said Thursday that she would not defend Michigan's 1931 abortion ban against a suit filed by Planned Parenthood of Michigan against her office. 

In a highly unusual move, the Democratic attorney general said she will not even set up a conflict wall in her office to defend the case, not unless or until she is ordered by a court.

"I don't want to use the resources of my offices and I don't think I should be made to use the resources of my office to enforce a law that I know will result in women dying in this state," Nessel said. "I didn’t become attorney general so I could head an office that put women in a position in which some of them would likely die."

Right to Life of Michigan accused Nessel of "violating her oath of office."

"Gov. Whitmer wants to cheat," the group said in a tweet. "The question is if the (Michigan) Supreme Court wants to torch their credibility as well. They should think about how these precedents they want to set will be used in the future by other officials."

Nessel noted it was possible a court could order her to set up a conflict law for the defense of the state's law or, more likely, that the GOP-led Legislature would intervene to defend the law. 

Then attorney general candidate Dana Nessel speaks during Hash Bash 2018.

"They move to intervene even in cases where we are defending the law," Nessel said. "I would suspect that even if I did erect a conflict law, they would try to intervene in the matter.”

Senate Majority Leader Mike Shirkey, R-Clarklake, on Thursday criticized Nessel's decision. 

"The attorney general shouldn’t have run for office if she didn’t want to do the job," Shirkey said in a statement. "The Senate will explore all of our options if she won’t fulfill her obligations.”

Both Planned Parenthood of Michigan and Democratic Gov. Gretchen Whitmer filed suits Thursday seeking to overturn the state's 1931 ban on abortions, seeking court orders opining that the state constitution already included the right to abortion and prohibiting prosecutors from enforcing the law should the U.S. Supreme Court overturn Roe v. Wade. 

More: Whitmer, Planned Parenthood file separate suits to overturn Michigan's 1931 abortion ban

Nessel prefaced her decision not to defend against the Planned Parenthood case in a press call Thursday by relating the story of an abortion she had in 2002. She was pregnant with triplets through artificial reproductive technology when physicians advised her to abort one in a bid to save the lives of the other two, whom she later delivered. 

"I didn't work as hard as I did to become pregnant only to have an abortion, but like most people I was faced with what felt like an impossible and incredibly difficult decision," Nessel said. "Because of that procedure, it allowed me to carry those other two babies long enough for them to be born alive."

The attorney general said she was unaware of other Michigan attorney generals refusing to defend a state law, including through a conflict wall. But she said it has occurred in other states during the same sex marriage debate as attorneys general refused to enforce state bans on gay marriage.

Nessel also is avoiding involvement with Whitmer's lawsuit filed Thursday in circuit court seeking to overturn the state's abortion ban. Others from her office filed the suit on behalf of Nessel, but the attorney general is not involved. 

Nessel, a Democrat, is running for re-election. Three Republicans are seeking to become her challenger at an April 23 state nominating convention, including former House Speaker Tom Leonard of DeWitt, who lost to Nessel by less than 3 percentage points in 2018.