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State Files Motion to Dismiss Amended Complaint in Litigation Over Reproductive Freedom

LANSING – Yesterday, in response to an amended complaint filed by anti-choice plaintiffs including Right to Life of Michigan and Republican lawmakers, Michigan Attorney General Dana Nessel filed a motion to dismiss the lawsuit, which seeks to strike down the right to reproductive freedom. Nessel argues plaintiffs lack standing to file such a complaint, their claims are not ripe, immunity bars their suit, and that even if plaintiffs could overcome these arguments, their claims fail as a matter of law. 

Following the United States Supreme Court’s 2022 decision to overturn Roe v. Wade, the issue of abortion was returned to the jurisdiction of individual states. To guard against the revival of an extreme, decades-old statute criminalizing all abortions except those performed to preserve the life of the pregnant individual and definitively resolve the issue within this State, Michigan voters passed Proposal 3 to amend the state Constitution and enshrine within it a right to reproductive freedom. 

In November 2023, Right to Life of Michigan, along with Republican lawmakers and others opposed to Michiganders’ right to abortion, filed a federal lawsuit seeking to invalidate and enjoin Section 28 of Article 1 of the Michigan Constitution, which became the law following the passage of Proposal 3. The lawsuit names Attorney General Dana Nessel, Governor Gretchen Whitmer, and Secretary of State Jocelyn Benson as defendants and seeks to overturn the will of the People of Michigan. 

The Attorney General filed a motion to dismiss in late January, and, in response, plaintiffs amended their complaint. Today, Attorney General Nessel filed another motion to dismiss, arguing that, even as amended, plaintiffs’ claims are defective. 

“The plaintiffs are attempting to undermine the will of the voters in Michigan who overwhelmingly supported guaranteed agency over their own personal medical decisions,” Nessel said. “The arguments supporting today’s motion to dismiss are largely unchanged from our initial motion; that the conjecture and hypothetical scenarios of these individuals and organizations are not adequate grounds to deny constitutional liberties to millions of Michigan women. This lawsuit was and remains nothing but a flawed, meritless, and overtly political attack on a fundamental constitutional right." 

“The fundamental problem with this lawsuit has not changed –it’s trying to revoke Michigan voters’ right to amend our constitution through ballot initiatives when elected representatives are unable or unwilling to uphold the will of the people,” said Benson. “This isn’t just about overturning the reproductive freedom the people of Michigan have definitively stood up to preserve, it's about protecting voters’ rights to enact laws that reflect their values. I will never stop fighting for our right to self-determination under the law.” 

Nessel has been an outspoken advocate for reproductive health since taking office in 2019. The Attorney General has joined multi-state amicus briefs to support access to healthcare in Idaho and Indiana and has also joined coalitions seeking to preserve access to medication abortion nationwide

When the U.S. Supreme Court overturned Roe v. Wade, reviving Michigan’s 1931 abortion ban statute, Nessel made it clear that she would not use the resources of her office to defend the statute, which criminalized abortion. She called for the repeal of the 1931 abortion law and in March of this year, the Michigan Legislature voted to do just that. Nessel also filed a brief in support of placing abortion access on the November 2022 ballot

The plaintiffs will have an opportunity to respond, and the court will determine the next steps.


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