Whitmer, Benson, and Nessel ask court to throw out challenge to abortion amendment

A supporter holds her breath as preliminary results for Michigan Proposal 3 are announced at a watch party in Detroit, Mich., on Election Day, Tuesday, Nov. 8, 2022.

It’s been three months since Michigan anti-abortion groups, Republican lawmakers, individuals, and a Jane Roe — called a “fictitious name on behalf of preborn babies” — filed a lawsuit in the U.S. District Court for the Western District of Michigan challenging the state’s constitutional amendment that ensures a right to abortion.

Right to Life of Michigan et al. v. Whitmer et al. alleges that Article I, Section 28 of the Michigan Constitution, also known as the Michigan Right to Reproductive Freedom Amendment,— which was overwhelmingly supported by voters in November 2022, causes harm to health care professionals, women, and unborn children, deprives parents of a right to educate their children, and infringes on “the rights of conscience and religious exercise protected by the First Amendment.” 

The suit names Michigan Attorney General Dana Nessel, Gov. Gretchen Whitmer, and Secretary of State Jocelyn Benson in their official capacities as defendants. On Jan. 30, their lawyers filed a motion to dismiss the suit. 

“The claims rise and fall on conjecture and hypothetical scenarios, which may never come to pass,” the motion reads. “Plaintiffs spend pages theorizing about how [Section] 28 might be applied to them, but their allegations are just that—theoretical. No Plaintiff has been regulated or otherwise harmed by [Section] 28, nor has any Plaintiff demonstrated that a harm is imminent or at a substantial risk of occurring.”

Since taking office in 2019, Nessel has been a vocal advocate for reproductive rights. In February 2023, she joined two multistate coalitions supporting access to medication abortion.

Attorney for the plaintiffs, William Wagner, told WKAR Michigan Public Radio that he believes a court should at least hear the case.

“There’s freedom of speech, there’s free exercise of religious conscience of OBGYN physicians that are raised in this lawsuit that I think are legitimate issues for a court to hear,” he said.

In April 2023, Whitmer signed bipartisan legislation repealing the state’s 1931 abortion ban and its criminal penalties. Although the law was invalidated in 1973 when the U.S. Supreme Court ruled in Roe v. Wade that there existed a federal constitutional right to abortion, it remained on the books and went back into effect after the court overturned Roe with its ruling in Dobbs v. Jackson Women’s Health Organization.

“Today, we are coming together to repeal the extreme 1931 law banning abortion without exceptions for rape or incest and criminalizing nurses and doctors for doing their jobs,” Whitmer said at the time. “I will continue to use every tool in my toolbox to support, protect, and affirm reproductive freedom for every Michigander, and I’ll work with anyone to make Michigan a welcoming beacon of opportunity where anyone can envision a future.”

Abortion is legal in Michigan until “viability,” generally considered to be around 24-26 weeks of pregnancy, or the stage in a pregnancy when a fetus has developed to the point that it can survive outside of the uterus.