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Nessel says she can’t stop abortion prosecutions if Roe is reversed

Young women hold handmade signs protesting the Supreme Court's apparent intention to overturn Roe v. Wade.
Jose Luis Magana/AP
FR159526 AP
Demonstrators protest outside of the U.S. Supreme Court Tuesday, May 3, 2022 in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday.

Michigan Attorney General Dana Nessel said Tuesday that she won’t prosecute abortion cases if Roe versus Wade is overturned by the U.S. Supreme Court – but she acknowledged that she cannot stop local prosecutors from enforcing a long-dormant state law that criminalizes abortion.

“Don’t bother bringing them to my office because we’re not going to authorize those,” Nessel said an online news conference, referring to criminal cases over abortions that could be prosecuted under the state law. Michigan’s 1931 law is one of the strictest in the nation and, if restored, would make it a felony to terminate a pregnancy. The law has no exceptions for rape or incest.

Nessel said she has the discretion to decide how her office’s resources are spent, and she won’t use them to take patients and health care providers to court to face criminal abortion charges. But Nessel said her discretion does not extend to local prosecutors, who would decide to whether to enforce the law in their counties.

“I don’t think I, as the attorney general of this state, have the authority to tell the duly elected county prosecutors what they can and what they cannot charge,” she said.

Governor Gretchen Whitmer has filed a legal challenge to the ban. She has asked that the case go directly to the Michigan Supreme Court and for the justices to preemptively declare that abortion rights are covered under the state constitution’s due process and equal protection clauses.

The Supreme Court is not required to comply. There is also a petition campaign underway to explicitly enshrine abortion rights in the Michigan Constitution. A constitutional amendment would have to be approved by voters.