ACLJ Supports Michigan Prosecutors Against Governor Whitmer's Attempt To Create Abortion Right by Lawsuit

The American Center for Law & Justice (ACLJ) submitted an amicus curiae brief (“friend-of-the-court” brief) along with a motion for leave to file the brief, to the Michigan Supreme Court to support two Michigan County Prosecutors who 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 motion and brief were submitted 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.

Although Roe v. Wade and other cases establishing a federally protected right to abortion that overrides most state prohibitions against abortion remain the law of the land for the moment, the recently leaked draft of the United States Supreme Court purported majority opinion in Dobbs v. Jackson Women’s Health Organization indicates that Roe may soon be overturned.

Before the leaked draft opinion, based on pure speculation of Roe’s demise, Governor Whitmer filed a lawsuit in early April in a Michigan trial court against thirteen 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 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 conformed that statute to comply with the federally established abortion right in Roe, even though the public policy of Michigan is to proscribe abortion; and 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 state 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 filings with the Supreme Court support that motion.

As explained in greater detail in our amicus curiae 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. Courts only resolve actual controversies and not abstract or hypothetical questions. (The leaked draft of the Dobbs decision has not altered Roe. A draft decision is not legal precedent.)   

Moreover, we explain that what the Governor is actually trying to do is improperly request an advisory opinion from the Michigan Supreme Court regarding the constitutionality of Section 750.14. Although the Court may issue advisory opinions, the Michigan Constitution requires that the Governor request one after the legislation has been enacted into law but before its effective date. Section 750.14, however, has been in effect since 1931. The time for any request for an advisory opinion concerning that statute expired 91 years ago when the statute went into effect.

In addition, we point out 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 here.

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 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 is overturned 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.

We end our brief by explaining that if the federally recognized right to abortion is limited or overturned, the authority to regulate abortion will return to the states, where the authority rested before Roe. Michigan, as with any state, would have the option to keep or change its abortion laws. These changes (if any) would properly occur through the democratic process, that is, by legislative changes or amendments to the Michigan Constitution, not through a lawsuit designed to create a new constitutional right and bypass that democratic process.

The Michigan 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 fully engaged in these battles to defend, and advocate for, the sanctity of life, as we have been for over 30 years.

UPDATE: The Michigan Supreme Court granted the ACLJ’s motion for leave to file its amicus curiae brief. As a result, the ACLJ’s brief is now part of the appellate record in this case. The Court also ordered Governor Whitmer to file a supplemental brief answering questions raised by the Court that are pertinent to the appeal. The Court invited all amicus curiae, including the ACLJ, to file additional briefing on these questions as well, and the ACLJ is preparing to do so.