Whitmer subpoenaed to testify in Oakland County abortion rights case

Beth LeBlanc
The Detroit News

A Lansing-area lawyer issued a subpoena Monday requiring Gov. Gretchen Whitmer to take the stand at a court hearing next week on the Democratic governor's legal effort to stop enforcement of Michigan's abortion ban. 

Attorney David Kallman said Whitmer is the one who brought the case against his clients, Jackson County Prosecutor Jared Jarzynka and Kent County Prosecutor Chris Becker, and they should be entitled to put her on the stand as the sole plaintiff in the suit.

"We have the right to question her on that and delve into that to get to the bottom of her claims," Kallman said Monday.

Whitmer is expected to fight the subpoena, which requires the governor to testify at an Aug. 17 hearing in front of Oakland County Circuit Judge Jacob Cunningham as he weighs whether to issue a preliminary injunction blocking the 13 county prosecutors named in her suit from enforcing the state's abortion ban. Whitmer challenged the ban in April, arguing abortion is protected under the Michigan Constitution.

"In this lawsuit, she does not represent all the women of the state of Michigan," Kallman said. "She represents the Governor’s Office.

"How is the governor irreparably harmed if a prosecutor prosecutes a doctor who performed an abortion? Our argument is she is not.”

The governor is expected to move to quash the subpoena, which will likely prompt another hearing that will leave the ultimate decision to Cunningham.

Whitmer's chief communications officer, Kaylie Hanson, said the prosecutors' motion amounted to "political games" meant to deflect from their efforts to preserve the ban.

"The governor will continue to fight to protect a woman’s ability to make her own medical decisions with her trusted health care provider," Hanson said in a statement.

The Aug. 17 hearing follows months of see-saw legal wrangling over the future of abortion in Michigan. 

Whitmer filed her suit in Oakland County in early April, the same day Planned Parenthood of Michigan filed suit in the Court of Claims against Nessel, who has said she would neither enforce nor defend Michigan's abortion ban. 

Both suits asked the courts to find a right to abortion in Michigan's constitution that overrode the state's 1931 abortion ban. The suits were filed in anticipation of the June 24 U.S. Supreme Court Dobbs decision that found there was no right to abortion in the U.S. Constitution and sent the issue of abortion back to the states to decide. 

Whitmer accompanied her lawsuit with a request to the Michigan Supreme Court, asking justices to take up her case immediately rather than allow it to be decided and appealed in the lower courts first. The high court has accepted various filings related to the request but has not yet said whether it would take up the case. 

In May, Court of Claims Judge Elizabeth Gleicher ruled Planned Parenthood was likely to succeed on its argument that there was a right to abortion under the constitutional rights of due process and bodily autonomy. Gleicher's opinion sidestepped a 1997 Court of Appeals opinion, Mahaffey v. Attorney General, which ruled there wasn't a constitutional right to abortion after a group argued there was one under the right to privacy. 

Gleicher directed Nessel to convey her May preliminary injunction to county prosecutors. 

But Jarzynka and Becker pushed back, arguing Gleicher didn't have the authority to bind them to her restraining order through the Court of Claims because they were neither named in the suit nor considered state actors subject to Court of Claims orders.

A week ago, a Court of Appeals panel sided with Jarzynka and Becker's arguments and found they were not bound by Gleicher's ruling. 

The ruling set off a daylong scramble to respond to the decision that ended with a request to Cunningham to issue a temporary restraining order in the Oakland County case where prosecutors were named as defendants. 

Cunningham granted the request almost immediately and, on Wednesday, extended his order through Aug. 17, when he'll hear arguments on the potential for a preliminary injunction on the prosecutors until the case is decided.