Nessel: Dismiss Planned Parenthood abortion case; Whitmer's suit should take precedence

Attorney General Dana Nessel on Tuesday reiterated her refusal to prosecute physicians or women under Michigan's abortion ban, but criticized a lawsuit filed against her department seeking to overturn the 1931 ban. 

Nessel said she believes the lawsuit brought by Planned Parenthood of Michigan should be dismissed for a lack of jurisdiction because there is no case or controversy — or active prosecution — that could serve as a basis for the suit, nor will there ever be while she's in office. 

It's unlikely the Democratic attorney general would file a motion to dismiss the case on those grounds since she's vowed not to expend the resources of her office to defend the 1931 law. 

At the same time, Nessel noted it would be inappropriate for her to stipulate to any orders or preliminary injunctions with Planned Parenthood given her decision not to defend the case.

"Frankly, I believe that the case should be dismissed for lack of jurisdiction because there’s no case or controversy," Nessel told media in a Tuesday Zoom press conference, noting her office is not investigating or prosecuting any cases under the law nor could it without a final decision from the U.S. Supreme Court. 

"I’ve pledged multiple times that I will not enforce this law and unless Planned Parenthood just doesn’t believe me and thinks that I’m misrepresenting what my position is, I don’t understand why I would need to stipulate to anything," she said. 

"Planned Parenthood would be better off if they were focusing on the governor’s case and filing an amicus on behalf of the governor and her actions," Nessel said, adding that prosecutors named in Whitmer's suit could create a case or controversy down the road should Roe be overturned. 

Planned Parenthood of Michigan responded by noting Nessel's response to their complaint was due in court Thursday and that she had a "duty to defend." 

"We don’t litigate our case in the press and will respond in court to their arguments," said Ashlea Phenicie, a spokeswoman for Planned Parenthood Advocates of Michigan.

"PPMI has properly brought suit against the attorney general who by law has a duty to defend and is looking forward to having the merits of their claims evaluated and ruled upon by this court, which as stated in the pleadings has proper jurisdiction in this matter." 

John Bursch, the state's solicitor general under Republican former Attorney General Bill Schuette, had made similar arguments to Nessel's in the Planned Parenthood case. He is representing Right to Life of Michigan and the Michigan Catholic Conference as amici in the case on behalf of Alliance Defending Freedom.

“Attorney General Nessel agrees with Right to Life of Michigan and the Michigan Catholic Conference that the Court of Claims lacks jurisdiction and should dismiss the case immediately," Bursch said. " We hope that happens as quickly as possible so this senseless proceeding can come to a quick close.”

The clash between Nessel and Planned Parenthood came a day after a leaked U.S. Supreme Court opinion indicated the 1973 federal abortion right was likely to be overturned. It also followed by nearly a month  Planned Parenthood and Gov. Gretchen Whitmer filing separate suits seeking to overturn Michigan's 1931 ban on performing abortions — a law that would take full effect if 1973's landmark Roe v. Wade decision is overturned. 

Whitmer, who is being represented by Nessel's office, filed her suit in Oakland County Circuit Court April 7 against 13 county prosecutors who would be able to enforce the law at abortion clinics in their counties. 

Planned Parenthood filed its case the same day against the attorney general as the state's top law enforcement official tasked with "defending and enforcing" the state's laws and "supervising all county prosecutors."

Nessel on Tuesday took issue with Planned Parenthood's posit that she had any authority to prohibit county prosecutors from charging individuals under the existing 1931 law. 

"I don’t believe that I as attorney general of this state have the authority to tell duly elected prosecutors what they can and what they cannot charge," Nessel said. "If that were the case, I don’t even know why we would elect our county prosecutors in the first place, if they’re not allowed to make their own decisions.”

She called on the GOP-led Legislature to step in and defend the law if Republican lawmakers are concerned about the future of Michigan abortion statutes, noting an early House budget passed through committee last month included about $750,000 for lawmakers to use to defend the law. 

"Come on in and you defend this law," Nessel said of the Legislature. "Because I’ve made it very clear I think it's unconstitutional, I think it is unethical for me to defend it.”

The Planned Parenthood case has drawn criticism from anti-abortion groups who have alleged the litigation is a "friendly suit" in which both the plaintiff and defendant agree on the issue in question but seek a court opinion to change state law.

The suit drew further scorn when it was randomly assigned to a state Court of Claims judge, Elizabeth Gleicher, who disclosed she is a donor to Planned Parenthood of Michigan and represented the group in a 1998 abortion law challenge that will be an integral case in deliberations over the current case. 

Gleicher declined to recuse herself and said through a court clerk that she could remain impartial. 

Planned Parenthood of Michigan, Nessel's office, and Gleicher had a closed-door scheduling conference via Zoom Monday. The Court of Claims, through the State Court Administrative Office, said the conferences are usually conducted in chambers and would not allow members of public or media into the online proceeding. 

So far, Right to Life of Michigan and the Michigan Catholic Conference are the only groups to have sought intervention in the case as amici parties. 

In Whitmer's case, Right to Life of Michigan, the Michigan Catholic Conference and state House and Senate Democrats have sought to file as amici. 

eleblanc@detroitnews.com