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Legislature’s GOP leaders want to defend abortion ban in court

State Capitol - file photo. Photo by Cheyna Roth, Michigan Public Radio Network
Cheyna Roth
Michigan Public Radio Network
Michigan State Capitol file photo from 2019.

Republican leaders in the state legislatures ask the Michigan Court of Claims to let them defend Michigan’s sidelined abortion ban in advance of a US Supreme Court decision on federal abortion rights.

The Michigan Legislature’s Republican leaders say they want to step in to defend the state’s dormant abortion ban if Attorney General Dana Nessel won’t.

The GOP leadership says it’s acting on behalf of the Legislature as an institution because Nessel, a Democrat, refuses to defend the dormant state law. The brief says the Legislature should decide what happens with abortion rights in Michigan if Roe v Wade is overturned.

From the GOP brief:

“The public is best served by letting the democratic process play out, and it is harmed when the judiciary seizes the issue from the people constitutionally empowered – and, practically, best poised – to resolve it.”

The brief asks the Court of Claims to allow the Legislature to join the case and to reverse an earlier decision to bar enforcement of the ban if Roe is overturned. Michigan’s statutory ban is very strict with no exceptions for cases of rape or incest or to protect the health of a pregnant woman. It only allows abortions that are necessary to “preserve the life” of the woman.

Nessel has said her office will not oppose allowing the Legislature to join the lawsuit. In part, that’s because without a defendant there would be no controversy for a court to hear. But she did release a statement blasting the Republican position.

“I have made very clear that I will not put the lives of Michigan women in jeopardy by using the resources of my office to defend Michigan’s 1931 statute criminalizing abortion,” she said.

The Court of Claims is not the only legal track being used by supporters of abortion rights.

Governor Gretchen Whitmer has asked the Michigan Supreme Court to directly take up the question of whether the state constitution’s privacy protections also cover abortion rights. That case is currently before the Michigan Court of Appeals.