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Former MI Supreme Court chief justice examines legal paths for Whitmer's abortion law challenge

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Governor Gretchen Whitmer is waiting to find out whether the Michigan Supreme Court will hear her challenge to Michigan's dormant abortion law that would come back into effect if the Roe v. Wade is overturned at the federal level.

The governor has asked the state Supreme Court to bypass lower courts and declare that Michigan's 1931 law violates privacy protections in the state constitution.

Whitmer is using a combination of legal maneuvers in her challenge. To look at the possible paths, Michigan Radio turned to former Michigan Supreme Court Chief Justice Marilyn Kelly. Kelly served on the court from 1997 through 2012. She's now the distinguished jurist in residence at Wayne State University Law School. Kelly spoke with Morning Edition host Doug Tribou.

A "rare" legal approach

The state law in question would ban all abortions unless the mother's life is at risk. In this case, the governor is going to directly to the state Supreme Court and asking them to fast-track a review of the law.

"This is rare. It's unusual. But the governor definitely has the legal authority to use her executive power to seek an informal opinion of the Supreme Court. She also has the legal authority under the Michigan constitution to bring a lawsuit in the name of the state in order to prevent violations of a constitutional power. So, that's what she did," Kelly said.

"This case, Whitmer against [Emmet County prosecutor James] Lindeman and others, was filed in the Oakland Circuit Court, and at the same time she filed a petition with the Michigan Supreme Court, and that's called an executive message. She's using this executive power to argue that the Michigan Supreme Court should interpret the Michigan constitution to grant the right to abortions in this state."

The court's considerations

Kelly sees a number of factors the justices need to weigh before deciding whether to hear the case.

"[The Michigan Supreme Court] has to consider whether this is of such public importance that it should grant this rather extraordinary remedy of not hearing from the lower courts."
Former state Supreme Court Chief Justice Marilyn Kelly

"Roe v. Wade does still exist and the 1931 Michigan statute is dormant, so [the court] is being asked to make an advisory decision about what would happen in the event Roe v. Wade goes down and the 1931 Michigan statute springs back into life," Kelly said.

"It has to consider whether this is of such public importance that it should grant this rather extraordinary remedy of not hearing from the lower courts, not having the procedures that normally are in place run themselves out, in order for the matter to reach the Supreme Court."

The court could decline to hear the case because Roe v. Wade is still the law of the land.

"And if it did, it means that the case that was filed by the governor in Oakland Circuit Court would then begin to be heard in that court," Kelly said. "And a decision of that court could be appealed, but it would go to the Michigan Court of Appeals and then a decision of that court, if a party wishes to appeal, it would go to the Supreme Court. So it would take some time to get all the way back to the Michigan Supreme Court."

Other options for the court

Kelly says the court has another choice beyond agreeing to or refusing to hear the case.

"The Supreme Court could simply sit on the request for a while. It's nearly certain that the [U.S. Supreme Court] decision in the Dobbs case will come out before the 4th of July and we'll know whether Roe v. Wade still lives, and we'll know whether that 1931 statute has been revived," she said.

"At that point, it would no longer be an issue that that's not alive. The court would be able to begin to consider the governor's executive message request."

Who defends the law?

If the court does choose to review the 1931 state law, that raises some questions about the process. In most court cases that challenge a state law, the state would be in the position of defending the law. But Michigan Attorney General Dana Nessel has said she will not defend the law in a similar lawsuit that's been brought by Planned Parenthood.

Kelly says that doesn't mean the law would go undefended.

"I think it's very likely that there will be an organization or organizations actively made parties to the suit that will defend the 1931 statute. For example, the attorney general has asked the Legislature to step in. They've so far refused to do that," Kelly said.

"Also, at the present time, the Alliance Defending Freedom, on behalf of Right to Life of Michigan and the Michigan Catholic Conference, have asked to intervene to become parties so that they could actively defend the constitutionality of the 1931 statute."

"It goes with the territory"

In addition to serving for 16 years on the state Supreme Court, Kelly also sat on the Michigan Court of Appeals for eight years. What is it like for justices when they have to decide whether to take high-profile, time-sensitive requests and cases?

"Definitely an intense moment. It goes with the territory, though," she said. "I think all the justices realize that one of their main responsibilities is to respond quickly to an emergency situation, to a matter of great public moment, as we say, a matter that involves a great many of the citizens or individuals in the state, and that has immediate repercussions where the people feel they need a final decision from the court of last resort."

To date, the court has given no indication of whether it will take up Whitmer's request and it has not provided any timeline for that decision.

Editor's note: Quotes in this story have been edited for length and clarity. You can listen to the full interview near the top of this page.

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