Michigan Democratic Attorney General Dana Nessel said that enshrining abortion rights in the state Constitution would mean 'that no Michigan Supreme Court decision can later impact reproductive rights, no matter who sits on the court.'
After the U.S. Supreme Court on June 24 struck down with its decision in Dobbs v. Jackson Women's Health Organization the constitutional right to abortion nationwide, the legality of abortion in Michigan now rests precariously upon a preliminary injunction issued by the state Court of Claims in May that prevents the 1931 abortion ban on the books in Michigan from taking effect.
The Court of Claims issued the temporary injunction in a lawsuit that was filed by Planned Parenthood of Michigan on April 7 seeking to have the 1931 ban declared unconstitutional and to have the state guarantee the right to an abortion.
Michigan Democratic Gov. Gretchen Whitmer, who filed a suit the same day in the Oakland County District Court with similar intent, filed a motion after the decision in Dobbs was announced asking the Michigan Supreme Court to take up that suit immediately. Whitmer said in a statement posted on her official website, "Today, I filed a motion urging the court to immediately take up my lawsuit to protect abortion in Michigan. We need to clarify that under Michigan law, access to abortion is not only legal, but constitutionally protected. The urgency of the moment is clear—the Michigan court must act now."
During a video press conference posted online by Detroit TV station WDIV on Friday, the state's Democratic Attorney General Dana Nessel said that, while she hopes the state's highest court will take up the governor's suit and find in her favor, that would not be enough:
Do I think that there are some very meritorious arguments that are being made? Absolutely. Should the Michigan Supreme Court rule in favor of the governor? Absolutely, I believe the court should. ... But what I would caution is this: Firstly, I think that it would be unfortunate, even if the court were to rule in favor of the governor, for the residents of the state of Michigan, for the voters of the state of Michigan to rely upon the Michigan Supreme Court to save reproductive rights for Michigan residents.
Courts and their decisions are subject to change, Nessel said, depending on who is on the bench. "We can no longer confidently look at stare decisis as any sort of a measure of what the court will do moving forward. If we have learned anything, it's that all rulings by any court are temporary in nature." Nessel urged registered voters in the state to sign on to a ballot proposal, called Reproductive Freedom for All, that would be placed on the November ballot and would, if approved by a majority of voters, "enshrine these freedoms, reproductive freedoms to abortion and to birth control, as well as to artificial means of reproduction like IVF" in the state constitution.
"And what that will mean is this," Nessel continued. "It means that no Michigan Supreme Court decision can later impact reproductive rights, no matter who sits on the court, and it will also mean that that will supersede any statutory authority, so that the legislature then cannot make an effort to curtail reproductive freedoms via regular legislation, because these will be constitutional rights that will be held by each and every Michigander. So that is what I'm urging people to do."
In order to be placed on the ballot in November the proposal, led by the ACLU of Michigan, Planned Parenthood Advocates of Michigan, and the reproductive rights organizations Michigan Voices and Reproductive Freedom for All, needs to collect 425,059 valid signatures by July 11.
University of Michigan law professor Barbara McQuade underscored the importance of the ballot initiative in a tweet Saturday, saying: "Yesterday, we grieved. Today, we work. If you want to help protect reproductive freedom in Michigan, you can sign a petition for the ballot proposal to amend the Michigan Constitution to protect this right. Better yet, circulate one."
Nessel is running for reelection in November and faces Republican nominee Matt DePerno, who supports a total ban on abortion with no exceptions for rape, incest, or the life of the pregnant woman. DePerno, who has Donald Trump's endorsement, said in a statement tweeted by his campaign on Friday: "I am thrilled to read the opinion of the Supreme Court to overturn Roe V. Wade. We finally have a law that upholds the lives of all Americans – born and unborn. As your attorney general I will uphold the constitution and the laws of our country. This is the vital role of our elected officials and particularly our law enforcement."
In a statement posted on her official website Friday, Nessel said: "The overturning of Roe is not just the loss of a right; it is the erosion of our status as equal citizens under the law. As a nation, we trust in our highest court to hold sacred their duty, free from political whim. Today's decision sets a dangerous precedent in reversing 50 years' of settled law; creating extraordinary upheaval in the American legal system; and putting at risk other individual rights that generations of Americans fought to secure and preserve."
Reproductive rights are likely to be a key issue in the midterm elections. In a May poll commissioned by the Detroit Chamber of Commerce, Michiganders rated abortion third on a list of priorities behind inflation and the state of the roads. The poll also noted that 59% of participants favored leaving Roe in place.
The Detroit News reported that Michigan pollster Richard Czuba of the Glengariff Group, which conducted the poll, said that Michigan voters should prepare for a "political earthquake" and "sky high turnout" in November.
Published with permission of The American Independent Foundation.