The 1931 law was made moot when the U.S. Supreme Court, in its 1973 Roe v. Wade decision, legalized abortion in all 50 states.
But the 91-year-old statute that is still on the books may yet again become the law of the state.
“If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance—including in cases of rape and incest. This is no longer theoretical: it is reality,” said Whitmer in an April 7 press release.
“No matter what happens to Roe, I am going to fight like hell and use all the tools I have as governor to ensure reproductive freedom is a right for all women in Michigan,” she said.
According to the press release, Whitmer also asked the Michigan Supreme Court for an expedited ruling “to immediately resolve whether Michigan’s Constitution protects the right to abortion.
“If the U.S. Supreme Court refuses to protect the constitutional right to an abortion, the Michigan Supreme Court should step in,” she said.
Attorney David A. Kallman of the Great Lakes Justice Center told The Epoch Times, “Among other things, Governor Whitmer’s lawsuit is a direct assault on prosecutorial discretion. Michigan law gives a county prosecutor unfettered and unreviewable discretion to either charge or not charge a person with a criminal offense.
“The governor has no authority over Michigan prosecutors regarding charging decisions. By law, she cannot force a duly elected county prosecutor to do anything except to obey existing laws,” Kallman said.
Kallman has been hired by Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerry Jarzynka, both Republicans, to represent them in the case.
Jarzynka said in an April 18 press release, “I will vigorously defend the right of all prosecutors to be free from political pressure in charging decisions.”
He told The Epoch Times he was surprised to find out he was named a defendant in the case and was not quite sure why.
“I feel a little bit like David v. Goliath. We are up against a huge law firm with more than 1,000 attorneys, plus the 200 from the Michigan Attorney General’s Office.
“But I believe we have righteousness on our side. And I feel passionately about defending a prosecutor’s broad discretion over when and when not to bring charges.
“I am also very thankful for the Great Lakes Justice Center and what they are doing for us,” said Jarzynka.
In an April 18 press release, Kent County’s Becker accused Whitmer of once again trying to “usurp the normal legislative process … If she wants to change a law … filing suit and looking to the Supreme Court to do it is not the right way.”
Becker later told The Epoch Times in a phone interview, “I feel like I’m getting pulled into a reelection campaign. This suit is just a political stunt to make Whitmer look good to her supporters.”
According to Kallman, Whitmer’s lawsuit is a pre-emptive legal strike to protect women and doctors from being prosecuted under the terms of an existing Michigan law prohibiting abortion except when the woman’s life is in jeopardy.
He told The Epoch Times, “No right to an abortion exists anywhere in the language of the Michigan Constitution, and no Michigan case law suggests otherwise.”
Kallman cited as precedent two cases decided since the 1973 Roe decision.
In one case, People v. Bricker, the Michigan Supreme affirmed the existing Michigan abortion statute as constitutional after the first trimester.
In 1997, a Michigan appeals court case, Mahaffey v. Attorney General, affirmed there is no Michigan constitutional right to an abortion.
Kallman said that no case of controversy exists for a court to decide, and none of the 13 defendant prosecutors have ever prosecuted anyone for violating the 91-year-old statute.
“No pressing need exists requiring a court to issue an injunction to stop something that is not happening. This case is both frivolous and meritless.
“Whitmer is on record backing a petition drive for a constitutional amendment to create a right to abortion in the Michigan constitution. Why is she doing that if the right to abortion is already in the constitution, as her suit contends?
Kallman said he was also concerned about a lawsuit filed on April 7 by Planned Parenthood in the Michigan Court of Claims against Michigan Attorney General Dana Nessel.
“It amounts to another attempt to invalidate the same law. The case is also a sham. Ms. Nessel must be recused from acting as an attorney charged with defending a law that she has publicly stated she will not defend and is advocating that it be overturned by Whitmer’s suit,” Kallman said.
Whitmer’s office did not respond to a request for comment.
The Michigan Attorney General’s Office does not comment on pending litigation.