Michigan's AG Refuses to Enforce Laws She Doesn't Like
In anticipation of a possible U.S. Supreme Court reversal of Roe v. Wade, Michigan governor Gretchen Whitmer and the state's radical attorney general, Democrat Dana Nessel, have launched a pre-emptive two-pronged attack on the existing state law that criminalizes most abortions. Last Thursday, Whitmer filed a lawsuit demanding judicial recognition of abortion as a protected right under the Michigan constitution.
The same day, Planned Parenthood filed a lawsuit to block enforcement of the 1931 law, naming Nessel, in her capacity as attorney general, as a defendant. In transparent coordination with Whitmer and Planned Parenthood, Nessel, the same day, announced in an "impromptu" press conference her refusal to defend against Planned Parenthood's lawsuit. In a move described as "highly unusual," she also said "she will not even set up a conflict wall in her office to defend the case, not unless or until she is ordered by a court."
Highly unusual, but not for Dana Nessel, who navigates the intricacies of the law the way a power mower navigates a field of daisies. Her long, loud advocacy for unrestricted legal abortion, which includes her campaign promise not to prosecute abortionists under the 1931 law if Roe is overturned, means she's got a glaring conflict of interest. The law she refuses to defend reflects the will of the people of the State of Michigan, speaking through their elected representatives. She's bound by the ethics rules not to represent a client — the state of Michigan — if that representation is "materially limited ... by the lawyer's own interests." At the very least, another attorney in her office should be allowed to defend the state's interest, independently of Nessel. But since her office is already handling the Whitmer lawsuit on Nessel's behalf, it's unlikely there's an assistant A.G. who has the guts to go against her.
This tag-team approach, an example of collusive litigation, has become a Democrat specialty. You see it when activists file a "friendly lawsuit" against a state (or the federal government) with a Democrat attorney general, who then either settles in the activists' favor or refuses to defend the lawsuit, handing the activists what they want by default.
We saw this tactic when Democrats changed voting rules in North Carolina in 2020 to tip the election. The extralegal changes, first imposed on the pretext of a COVID emergency, were made permanent by "a legal settlement agreement entered into by Democrat N.C. Attorney General Josh Stein and the majority-Democrat State Board of Elections with plaintiffs represented by well-known Democrat lawyer Marc Elias" — a virtual "'one-party deal that circumvented the legislature.'"
Then, last November, we saw Joe Biden's Department of Justice colluding with the ACLU, quietly negotiating a favorable settlement of their lawsuit on behalf of illegal aliens separated from their children at the border. The settlement would have paid $450,000 per individual or nearly a million dollars for a two-person family. Biden denied the negotiation at first, then excused it with something about the aliens deserving compensation. Public outrage forced the administration to abandon the deal, but it was clear that "cahoots" was the operative word describing "the arrangement between the ACLU and Biden's DOJ."
Nessel's been in her own cahoots with the ACLU before this. As part of a nationwide war on Christian adoption agencies, the ACLU filed a federal lawsuit to force Michigan's Department of Health and Human Services to stop contracting with agencies that declined, on religious grounds, to place children with same-sex couples. Because of a Michigan statute passed in 2015 that expressly prohibits state and local departments from forcing faith-based agencies to provide services that conflict with their sincerely held religious beliefs, Nessel's predecessor in office properly fought back against the ACLU.
But as soon as she took office, Nessel, who can fairly be described as a bigot when it comes to religious believers, refused to defend the case and ordered the health department to settle. The resulting agreement handed the ACLU the mandatory contract language they wanted, forbidding religious agencies from turning away same-sex couples. Nessel promptly issued an order that all adoption agencies had to place children with same-sex couples, which forced the nonprofit Catholic Charities to discontinue its adoption services completely. Even the liberal news media criticized Nessel for abusing her office, ignoring or "undermining laws she doesn't like" despite that "she's the attorney general, not the Legislature."
(In this case, Catholic Charities finally prevailed. This past January, the adoption agency's federal lawsuit was resolved with an agreement providing that Michigan cannot cancel contracts because an agency doesn't place children with same-sex couples. Nessel's anti-religious hostility, amply documented in her public statements, left the state's lawyers no choice but to concede that Catholic Charities would "likely prevail" on its Free Exercise claim.)
Nessel is claiming that her refusal to defend the Michigan abortion law, or prosecute anyone who violates it, lies within her "prosecutorial discretion as to whether to file charges against someone." We've seen similar claims from "Trojan horse prosecutors" who won state and local elections thanks to millions poured into their campaigns by George Soros.
But these claims about prosecutorial discretion are bunk. Last summer, Senator Tom Cotton wrote that refusing to charge criminals for entire categories of crimes "transform[s] prosecutorial discretion into prosecutorial nullification." The power "to emphasize or deemphasize the importance and severity of certain criminal prosecutions" doesn't give them the power of "unilateral fiat to abolish laws they don't like. The legislative branch is solely empowered to repeal laws, not prosecutors."
The last time Michigan voters were allowed to express their will on abortion was in 1972 when a super-majority of 60% voted down a ballot proposal to legalize it. The following year, Roe undid that. But later that year, the Michigan Supreme Court issued an opinion on an abortion case, acknowledging Roe but declining to overturn the state's anti-abortion statute. According to the justices, "[t]he public policy of this state is to be found in the declarations and deeds of its people," and therefore, "[i]t is the public policy of the state to proscribe abortion." If Roe is overturned, abortion will again be proscribed in Michigan.
Unfortunately, Whitmer and Planned Parenthood filed their lawsuits knowing the majority-Democrat Michigan Supreme Court won't hesitate to strike down the abortion statute. Aside from that, after 50 years and millions of abortions, it's hard to imagine that a majority of Michigan voters would still support pro-life legislation the way they did in 1972.
Regardless, as a general principle, and as the Michigan Supreme Court said in 1973, public policy has to emerge from the "declarations and deeds of the people" working through a democratic process. But power-drunk officeholders like Whitmer and Nessel, if they're allowed to get away with it, will impose their own policy preferences on the entire state, consulting nothing more than their own partisan agenda.
T.R. Clancy looks at the world from Dearborn, Michigan. You can email him at firstname.lastname@example.org.
Image: Dana Nessel for Michigan Attorney General via YouTube.