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Michigan Attorney General Dana Nessel will not defend state's 24-hour abortion waiting period against litigation

Beth LeBlanc, The Detroit News on

Published in Political News

LANSING, Mich. — Attorney General Dana Nessel and two key state agencies will not fight efforts by a group of abortion providers to overturn the state's 24-hour abortion waiting period, telling a court Tuesday that it's likely the clinics will succeed in their efforts to eliminate the laws.

Nessel, a Democrat tasked with defending Michigan law, said she believes the abortion clinics will succeed in their arguments that maintain a required 24-hour waiting period before an abortion, a mandatory counseling rule and prohibitions barring advanced practice clinicians from performing abortions conflict with the November 2022 voter-approved amendment enshrining abortion as a right in the state constitution.

Because of that, Nessel told the court, the group's request for a preliminary injunction stopping enforcement of those laws should be granted. The Department of Licensing and Regulatory Affairs and the Department of Health and Human Services, which also are named as defendants in the case, filed similar responses.

“It is only right that the Court issues this preliminary injunction in accordance with the protections now in place following the recent enactment of Proposal 3," Nessel said in a statement regarding the filing. "I remain steadfast in my commitment to ensuring that the women of Michigan receive the health care services, and reproductive health freedoms, they need.”

But the Democratic attorney general did take issue with the litigation in as much as it seeks to overturn the laws in whole. The laws provide some provisions that would withstand constitutional scrutiny and should be upheld, Nessel argued, such as confidentiality requirements and screenings for domestic violence. As such, any preliminary injunction of the law "should be narrowly drawn," she said.

Additionally, the attorney general said in Tuesday's filing that a conflict wall has been erected within her office and she expects other attorneys in her office will seek to intervene on behalf of the state to defend Michigan's laws.

 

The lawsuit filed earlier this month by Michigan abortion providers and a pro-abortion rights student group challenged longstanding Michigan abortion regulations that they say violate the right to abortion enshrined in the state constitution. It was filed against Nessel, the Department of Health and Human Services and the Department of Licensing and Regulatory Affairs, meaning the state of Michigan — represented by assistant attorneys general behind a conflict wall — needs to ask the court to intervene to be part of the case and defend the laws.

In its filing, the Department of Licensing and Regulatory Affairs said it does not oppose the litigation and said, for its part, the agency hasn't taken any action against medical providers that involves the challenged provisions since Proposal 3 took effect in December 2022.

The Department of Health and Human Services in its response said it would not oppose the preliminary injunction requested by the abortion providers. But the department also noted it "has neither authority nor a duty to enforce" the challenged provisions; that authority lies instead with criminal prosecutors or the state's licensing authority.

"An injunction against enforcement may cause a provider not to comply with the challenged laws," DHHS said in its response. "But, as described above, such a provider still may be exposed to prosecution by a non-party local prosecutor."

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