GOP-led Legislature to step in as defendant in high profile Michigan abortion lawsuit

Beth LeBlanc
The Detroit News

Lansing — The Republican-led state Legislature plans to step in as the defendant in a case challenging the constitutionality of Michigan's abortion ban after Attorney General Dana Nessel said neither she nor anyone in her office would defend the state law.

In a Monday night filing, the Legislature said its interest in defending state statutes is "overwhelming," especially when the executive branch responsible for defending Michigan laws "refuses to do so from the onset."

Nessel has taken no legal position on the Legislature's planned intervention, though she's said publicly that the Legislature is welcome to step in, and Planned Parenthood agreed to the intervention, but opposed lawmakers' accompanying request to reconsider the May preliminary injunction issued in the case, Monday's motion said.

If Roe is overturned, lawmakers should have the opportunity to revisit Michigan's abortion ban and other related laws through "debate and compromise," not through a state court edict, the filing said. 

"...a judicial opinion that overreaches to settle this issue usurps the power of the Legislature, exacerbates polarization, and smothers the potential for a democratic solution and public buy-in," the filing said. 

Planned Parenthood declined to comment on the filing Tuesday.

Nessel in a Tuesday statement reiterated her commitment to prohibit resources from her office going to defend the state's abortion ban. 

"While many of my colleagues in the Legislature want to strip women of their rights, I will continue to protect women’s reproductive health and their fundamental right to make decisions over their own bodies," Nessel said.

Democratic lawmakers condemned the filing Tuesday, emphasizing that the Republican majority was acting on its own.  

"This is a partisan political play, not an act of the full Michigan Legislature," said Rosie Jones, a spokeswoman for Senate Minority Leader Jim Ananich, D-Flint.

Nessel, who is the named defendant in the suit, has refused to defend the law but publicly questioned the standing of Planned Parenthood's suit, arguing there is no case or controversy on which to base a complaint because the law isn't currently being enforced.

The suit was filed April 4, the same day Democratic Gov. Gretchen Whitmer filed a similar complaint in Oakland County against 13 county prosecutors who would be tasked with enforcing Michigan's long-dormant abortion ban.

Both suits were filed in anticipation that the U.S. Supreme Court will overturn the landmark 1973 Roe decision that enshrined abortion in the federal constitution. If Roe is overturned, Michigan would revert to an abortion ban that predates the Civil War.

Court of Claims Judge Elizabeth Gleicher in May granted a preliminary injunction to Planned Parenthood, concluding that the group was likely to succeed in its suit on arguments that "forced pregnancy" is a threat to a woman's constitutional right to bodily integrity and due process.

The Legislature had held off on intervening in the suit on the expectation that it would be thrown out on jurisdictional issues, but the judge's decision to issue a preliminary injunction despite those jurisdictional concerns became a tipping point, said Rep. Pamela Hornberger, R-Chesterfield. 

"You can’t, as a judge, just create law on your own," Hornberger said. "There’s no case law that she can point to.”

Hornberger said the GOP-led chambers feel the suit lacks standing without a federal decision on Roe and she criticized those using such a "polarizing" issue as an election-year message. Only if or when Roe is overturned can there begin to be "a very serious conversation about where Michigan goes after that," she said.

"It’s gross to use abortion as a wedge," Hornberger said. "It’s a horrible decision a person has to make and it's not something we should be using to polarize people to garner votes.”

An early House budget proposal includes about $750,000 to "legally defend the constitutionality of state laws," including the state's abortion ban. The Legislature retained conservative Washington, D.C.-based law firm Schaerr Jaffe for its defense.

Rep. Laurie Pohutsky, D-Livonia, called the House and Senate's intervention in the lawsuit a "waste of taxpayer dollars" and she rejected arguments that the courts or Legislature should wait any longer to nix the state's abortion ban. 

"This is a moment when it is absolutely crucial for the courts to weigh in and their motion seems to ignore that," Pohutsky said.

Pohutsky is the lead sponsor of the House version of the Reproductive Health Act, which would repeal the abortion ban and other barriers to abortion put in place after Roe. The legislation has yet to receive a hearing in the GOP-led House.

Since Planned Parenthood's case was filed in the Court of Claims, where complaints against the state are addressed, only a state actor can intervene as a defendant, barring anti-abortion groups from doing anything more than filing friend of the court briefs so far.

But Right to Life of Michigan, the Michigan Catholic Conference and two county prosecutors last month sought to challenge Gleicher's ruling in the Michigan Court of Appeals. 

The group asked the Court of Appeals to take over the lawsuit and vacate Gleicher's preliminary injunction on the grounds that she acted without jurisdiction in the matter, is a donor and past lawyer for Planned Parenthood and because her order inappropriately attempted to enjoin county prosecutors through a decision aimed at Nessel. 

The Legislature's intervention seeks a similar reversal of the preliminary injunction, arguing that Gleicher lacked jurisdiction in the case and, aside from that, inappropriately concluded there was a constitutional right to abortion. 

Lawmakers pointed to a 1997 Court of Appeals opinion, Mahaffey v. Attorney General, that said there "is no right to abortion under the Michigan Constitution" and a 1973 Michigan Supreme Court opinion, People v. Bricker, that said the "public policy of the state" is to "proscribe abortion."

"These binding precedents leave no room for doubt about whether our Constitution provides a right to abortion — it does not," the Legislature wrote. 

Gleicher's May opinion ruled the Mahaffey case addressed only the right to abortion under the constitutional right to privacy, but her order found it likely there was a right to abortion secured through the right to bodily integrity and the due process clause. 

The Legislature criticized her reasoning Monday. 

"Saying Mahaffey's right-to-privacy holding does not apply to a bodily-integrity claim is like saying the prohibition on driving while intoxicated does not apply to those who drink wine," the filing said. 

"Of course it does. Just like wine is a type of intoxicant, bodily-integrity claims are merely a kind of right-to-privacy claim."