Nessel files brief to keep Michigan abortion regulations on hold

Hundreds rally at the state Capitol for the MI Body MI Choice event on Oct. 2, 2021 | Allison R. Donahue

Michigan Attorney General Dana Nessel has filed a brief seeking to block an appeal of a preliminary injunction that paused three long-established state abortion regulations, including a 24-hour waiting period.

“The injunction barring the enforcement of these select provisions is proper, as the Court correctly agreed the challenged laws are likely unconstitutional,” said Nessel. “I remain committed to defending the reproductive freedoms Michiganders deserve, and emphatically supported enshrining in our state constitution.”

The brief , filed Friday in the Michigan Court of Appeals, was in response to a request by attorneys for the People of the State of Michigan in Northland Family Planning Center, et al v. Nessel, et al. to appeal a Michigan Court of Claims decision in June that the regulations in question violated the 2022 passage of a ballot proposal that enshrined the right to an abortion in Michigan’s constitution.

The judge in that case granted a preliminary injunction blocking the state from enforcing the 24-hour waiting period as well as provisions that required distribution of certain information to patients before an abortion, also known as “informed consent.” and prohibited advanced practice clinicians to perform abortions.

The injunction is in place pending any challenge as the case proceeds. The lawsuit was filed in February by the Center for Reproductive Rights on behalf of Northland Family Planning Centers and Medical Students for Choice.

Although Nessel is named in the lawsuit in her official capacity, the Department of Attorney General has erected a conflict wall in the matter as Nessel has publicly said the provisions, which also include include the required distribution of certain information to patients before an abortion, and the prohibition of advanced practice clinicians to perform abortions, were likely unconstitutional .

A team of assistant attorneys general, led by Deputy Solicitor General Eric Restuccia, was assigned to defend the challenged provisions and intervened on behalf of the state of Michigan.

In her brief, Nessel argued that an appeal should be denied based on the plain wording that the 2022 ballot proposal added to the state’s constitution.

“Article 1, § 28 of the Michigan Constitution guarantees the right to reproductive freedom and prohibits the State from denying, burdening, or infringing on that right absent a compelling state interest justified by the least restrictive means. Based on the record evidence, the Challenged Laws do not overcome the compelling interest test and are instead repugnant to the Michigan Constitution and the goals of healthcare,” said Nessel in the brief.

The lawsuit looking to remove the provisions also names Department of Health and Human Services Director Elizabeth Hertel and Department of Licensing and Regulatory Affairs Director Marlon Brown in their official capacities.

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