The Great Lakes Justice Center announced Monday that it will represent two county prosecutors in Governor Gretchen Whitmer’s lawsuit to overturn Michigan’s 1931 abortion ban.
Whitmer’s lawsuit filed earlier this month challenging a 1931 abortion ban came in anticipation that the U.S. Supreme Court could overturn the landmark Roe v. Wade who enshrined abortion as a constitutional right.
The lawsuit names 13 county attorneys, seven Democrats and six Republicans, who could be called upon to enforce the 1931 law in counties where abortion clinics operate.
In a statement earlier this month, seven of those county prosecutors, all Democrats, said they supported the governor in her efforts and would not enforce the 1931 law if Roe was overthrown.
The Justice Center will defend two Republicans, Jackson County District Attorney Jerard Jarzynka and Kent County District Attorney Chris Becker against the “frivolous and baseless lawsuit,” the center said in a press release.
Whitmer’s lawsuit was filed almost in tandem with a similar lawsuit by Planned Parenthood of Michigan. The lawsuits contain similar arguments but differ in that Planned Parenthood’s litigation was filed in the Michigan Court of Claims, while Whitmer filed in the Oakland County Circuit Court. She said she was using her executive power to seek immediate intervention from the Michigan Supreme Court rather than going through the state’s lower courts first. The state high court has a 4-3 majority of Democratic-appointed justices.
In a statement to The News Monday night, Whitmer said overthrowing Roe would criminalize abortion and affect nearly 2.2 million Michigan women. She added that if a woman is forced to continue a pregnancy against her will, it can have devastating consequences, including keeping families poor.
“In the coming weeks, we will know if the Supreme Court of the United States decides to overturn Roe v. Wade,” Whitmer said. “If Roe is overturned, abortion could become illegal in Michigan under almost all circumstances – including rape and incest – and deprive Michigan women of the ability to make critical decisions for themselves in matter of health care. It is no longer theoretical: it is reality. That’s why I’m taking legal action and using my executive authority to urge the Michigan Supreme Court to immediately determine whether Michigan’s state constitution protects the right to abortion.”
The Lansing-based center asserted that Whitmer “has no unilateral authority to attack any state law as unconstitutional” and “no case or controversy requiring judicial intervention exists.”
“Neither Mr. Jarzynka nor Mr. Becker has ever prosecuted anyone for violating this statue. The Governor has not alleged that a single woman or doctor has been prosecuted under this criminal law in fifty years,” the statement said. “Contrary to the Governor’s assertions, there is no pressing need for a court to issue an injunction to restrain a prosecutor from enforcing a law he is not enforcing.”
The center also claimed that there is no state constitutional right to abortion and that the lawsuit is a “direct attack on prosecutorial discretion.”
“The most compelling state interest is to protect life,” Jarzynka said in the statement. “Furthermore, I will vigorously defend the right of all prosecutors to be free from political pressure in charging decisions.”
Becker said he was offended by “another attempt by Governor Whitmer to usurp the normal legislative process. If she wants to change a law, introduce a bill and convince the people that it is in their interest to enact it. ask the Supreme Court to do so is not the right way.
Michigan’s 1931 ban, known as Law 328, makes it a crime to perform an abortion. At the time it was written, abortions were a significant cause of maternal deaths, but they have essentially lain dormant since Roe was ruled. The ban would be enforceable if the 1973 ruling were overturned.
Attorney General Dana Nessel, a Democrat, said she would not enforce the 1931 law if Roe is overturned, but county prosecutors also have the power to bring charges under the law.
The Michigan Supreme Court often prefers lower courts to intervene on issues rather than expedite decisions, except in emergency cases.
“Governor Whitmer should not waste her time and taxpayers’ money to bring such irresponsible and baseless lawsuits,” said David Kallman, senior legal counsel for GLJC. “Governor Whitmer cannot circumvent the Legislative Assembly and the will of the people. The Governor does not have ‘delayed veto power’ to attempt to strike down a law more than 90 years after it was enacted, simply because she does not agree with this law.”