ACLJ Files Second Brief Against Michigan Governor Whitmer’s Attempt To Create Abortion Right

Last month, the American Center for Law & Justice (ACLJ) filed an amicus curiae brief (“friend-of-the-court” brief) with the Michigan Supreme Court to support two Michigan county prosecutors.

The prosecutors are fighting against Michigan Governor Gretchen Whitmer’s attempt to bypass the requirements of the Michigan Constitution and have the State courts create a constitutional right to abortion. The brief was filed on behalf of the ACLJ and more than 411,000 of our supporters (including more than 12,200 in Michigan) who advocate for the sanctity of life.

In April, the Governor filed her lawsuit in a Michigan trial court based on speculation that the United States Supreme Court will limit, or overturn, Roe v. Wade in its upcoming decision in Dobbs v. Jackson Women’s Health Organization. She sued 13 county prosecutors whose offices are in counties where abortions are performed. Although the Michigan Constitution does not include a right to abortion, the Governor’s lawsuit seeks to create such a right and also to invalidate a 1931 State law (Section 750.14) that prevents abortion unless it is necessary to preserve the life of the mother.

In 1973, the Michigan Supreme Court narrowed Section 750.14 to comply with the federally established abortion right in Roe, even though the public policy of Michigan is to proscribe abortion. In 1997, the Michigan Court of Appeals determined that there is no right to abortion in the Michigan Constitution, separate from the federal right.

In addition to filing her lawsuit in the State trial court, the Governor asked the Michigan Supreme Court to authorize the trial court to certify questions, which would allow the Supreme Court to resolve the main issues of her lawsuit now instead of having the case proceed through the normal stages of litigation (a decision from the trial court, an appeal to an intermediate court, then an eventual appeal to the MI Supreme Court).

In response to the certification request, Jerard Jarzynka (the Jackson County Prosecutor) and Christopher Becker (the Kent County Prosecutor), who are defendants in the Governor’s lawsuit, filed a motion with the Michigan Supreme Court to dismiss the Governor’s case. The ACLJ’s initial amicus curiae brief supports that motion.

As explained in greater detail in that brief, the Governor’s case should be dismissed and her request for the certification of questions should be denied. Her lawsuit was filed prematurely. Roe is still the law of the land, and Section 750.14 is still limited by Roe. In other words, at this time, there is nothing for the Governor to challenge or for the courts to resolve.

Moreover, we explained that Governor Whitmer has exceeded her constitutional authority in filing her lawsuit. The Governor may file a lawsuit on behalf of the State to enforce compliance with a law or to restrain violations of a law. Neither of those two circumstances is present in her case.

First, the Governor is not trying to compel the two prosecutors to enforce any law; rather, she is trying to have them not enforce Section 750.14, should that law go back into effect in full if Roe is overturned or limited. The Governor’s attempt to stop the enforcement of law (whether now or in the future) runs contrary to her constitutionally imposed mandate to ensure that “laws be faithfully executed.”

Second, the Governor is not trying to restrain any violations of law. Should Section 750.14 be allowed to be fully enforced if Roe isoverturned or limited, the Governor cannot prevent prosecutions under that statute, especially when there is no right to abortion under the Michigan Constitution. Prosecutors have discretion to decide whether to institute a prosecution; the Governor cannot dictate how they exercise that discretion.

After we filed our initial amicus curiae brief, the Michigan Supreme Court issued an order instructing the Governor to file a supplemental brief to answer a number of questions, and invited all amici, including the ACLJ, to submit supplemental briefs as well.

Recently, we filed our supplemental brief and addressed whether the Michigan Supreme Court should consider the Governor’s case now or after the United States Supreme Court issues its Dobbs decision. Our brief also addresses whether the Dobbs decision would be binding or persuasive authority to the questions raised by the Governor. We explained that the Michigan Supreme Court should wait until the Dobbs decision is released before considering the Governor’s case. Michigan courts have repeatedly recognized that the due process and equal protection provisions of the Michigan Constitution are coextensive with the same provisions in the federal Constitution. Accordingly, should the Dobbs decision determine that there is no right to abortion under the federal Constitution’s due process and equal protection clauses, that decision would be highly relevant guidance for the Michigan Supreme Court to reach the same conclusion regarding the Michigan Constitution.

We further explained that the Governor is seeking to create an absolute Michigan constitutional abortion right through her lawsuit that far exceeds the federal Roe-based abortion right. Her unprecedented proposed revision of the Michigan Constitution, however, can only occur, if it occurs at all, through the constitutional amendment process, not through the amendment-by-litigation strategy that her lawsuit represents. We point out that if the federally recognized right to an abortion is limited or overturned by Dobbs, the authority to regulate abortion would return to the states, where it rested before Roe was released in 1973. The policy arguments that the Governor asserts in her lawsuit should be presented to the proper audience: the legislature and the public at large. The democratic process should take place to decide whether any changes should occur to Michigan’s prohibition of abortion. That process would involve new legislation or amendments to the constitution. Those changes should not be forced on the populace through the Governor’s lawsuit.

The Michigan Governor’s lawsuit is just one of the many legal actions (in addition to legislative actions) that will be taken in anticipation of, or in response to, a United States Supreme Court ruling that limits or overturns Roe.

The ACLJ is ready to engage in these battles to defend, and advocate for, the sanctity of life, as we have for more than thirty years.