MI Gov. Whitmer and Attorney General Nessel Go All-in for Abortion, Vowing to Defy State Law

Michigan still has a law on the books from 1931 that bans all abortions in the state. But Democratic Governor Gretchen Whitmer and Attorney General Dana Nessel, a pro-abortion Democrat, are vowing to disobey that law if the U.S. Supreme Court overturns Roe v. Wade, the 1973 decision that legalized abortion nationwide.

If that happens as expected later this month, abortion would be an issue for each state to decide individually.

Whitmer signed an executive order instructing all Michigan state government departments and agencies to assess potential opportunities to increase protections for reproductive health care such as contraception, long-acting reversible contraception, and so-called emergency contraception which pro-life advocates equate with abortion.

"If Roe is overturned, Michigan's 1931 law banning abortion even in cases of rape or incest and criminalizing doctors and nurses may go back into effect," the governor said in a statement. "This would punish women—our neighbors, family, and friends—and criminalize doctors and nurses for doing their jobs."

"I am signing an executive directive instructing all state departments and agencies not to cooperate with authorities from other states who want to prosecute women seeking legal abortion care," she continued. 

"No matter what happens in DC, I am going to fight like hell so every Michigander can make decisions about their own body," Whitmer said. 

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Meanwhile, Attorney General Nessel, the state's chief law enforcement officer, is vowing to not uphold the law. 

"It is incumbent upon those of us who hold public office to exercise the full authority of our positions to extend support and protection for women in our state--and our country," Nessel said in a statement. "That is why I have made clear that I will not use the resources of my office to enforce or defend Michigan's 1931 statute criminalizing abortion.  I refuse to put millions of Michigan women at risk by restricting their access to safe abortions."

Governor Filed Lawsuit in April, Wants State Supreme Court to Act Quickly

If Roe is overturned, Whitmer wants to stop the state law protecting unborn babies from taking effect. 

She filed a lawsuit against the 91-year-old pro-life law in April and wants the Michigan Supreme Court to declare that the 1931 ban on abortion is illegal under the state constitution. What's unusual is she wants the court to reach over lower courts and settle it quickly.

"Michigan's Due Process Clause provides rights to privacy and bodily autonomy," Whitmer said in her April 7 letter to the state Supreme Court.

Judge Who Financially Supports Abortion Provider, Issues Injunction Suspending Pro-Life Law 

Planned Parenthood of Michigan has already won a separate decision from Judge Elizabeth Gleicher at the Court of Claims, who said the law likely is unconstitutional. She suspended the law with a preliminary injunction while the case proceeds.

Alliance Defending Freedom (ADF) attorneys filed a complaint on behalf of two county prosecutors and two pro-life groups asking the Michigan Court of Appeals to take control of the case Planned Parenthood of Michigan v. Attorney General of the State of Michigan and order the lower court to dismiss it, saying that court glaringly exceeded its jurisdiction.

"This is the kind of mess that you end up (with) in the court system when the state's chief executive and its attorney general refuse to uphold and defend the law that has been in place since 1931," ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch told The Associated Press. "They may not like it. But no one has the ability to unilaterally ignore, change, encourage the invalidation of Michigan law. They should be working through the democratic process just like anyone else."

The ADF attorneys also noted Judge Gleicher's past legal work for Planned Parenthood and her financial support of the organization. 

Gleicher, who also serves as chief judge on the Michigan Court of Appeals, informed the parties in April that she makes annual contributions to Planned Parenthood and, as a lawyer, represented the organization in a 1997 abortion case. She said she didn't feel it should disqualify her.

"She should have recused herself," Bursch said.

It is still possible that the Michigan Republican-controlled Legislature could file an appeal. 

States Scrambling to Get Ready for the Fall of Roe

In May, Politico published a leaked draft of a U.S. Supreme Court opinion, which showed the court could be poised to overturn Roe v. Wade.

Both Whitmer's and Planned Parenthood's lawsuits preceded the leak of the draft opinion. They are examples of how Democratic-controlled states across the country are preparing for the fall of Roe. For example, California has taken steps to establish the state as an abortion destination for women traveling from non-abortion states. 

Meanwhile, some Republican-led states are passing pro-life laws outlawing abortion.  As CBN News reported, late last month Oklahoma Governor Kevin Stitt (R) signed into law the nation's strongest ban on abortion, making it the first state in the nation to make abortion unavailable for the majority of cases.

The law takes effect immediately, and if the U.S. Supreme Court overturns Roe v. Wade as expected in the coming weeks, then the law could survive judicial challenges as well.