The fate of Roe v. Wade has never hung more precariously in the balance as the 6-3 conservative-majority U.S. Supreme Court began hearing oral arguments Wednesday over a Mississippi abortion law that may spell the end of Roe v. Wade.
Just one day before, a 15-year-old at Oakland County’s Oxford High School allegedly opened fire, killing four students and injuring seven others.
The collision of the two issues in less than a week, both of which she is deeply involved in, is not lost on Attorney General Dana Nessel.
By the end of this Supreme Court term, it will likely be far easier for a teenage boy to acquire a firearm in Michigan than for an adult woman to procure an abortion.
— Dana Nessel (@dananessel) December 1, 2021
In a phone interview with the Democratic AG Wednesday evening, the Michigan Advance asked how preventing gun violence and protecting abortion access is possible under a GOP-controlled state Legislature and an right-wing Supreme Court.
“Anything that’s any kind of regulation on any kind of firearm is impermissible in accordance with today’s Republican Party,” Nessel said.
And most Republican officials at the state and federal level are also firmly against abortion rights.
To Nessel, both issues are prime examples of how “the Republican Party is in the extreme minority when it comes to how the public feels and how residents of the state of Michigan feel.”
Sixty percent of American adults want to see Roe v. Wade upheld, according to a new Washington Post/ABC News poll, and Pew Research has found that roughly two-thirds of Americans have consistently opposed completely undoing Roe for the past 30 years.
Additionally, about 57% of Americans believe that firearm sale laws should be stricter.
Why can you buy a deadly weapon when you're 18 but not a Budweiser? I mean, it's outrageous.
– Attorney General Dana Nessel
Nessel says that the only real way to get an “extreme minority” from controlling public policy for everyone else is to vote them out of office. Michigan’s new redistricting panel will help, she contended — a “once-in-a-decade redistricting” process and a “once-in-forever opportunity to have non-gerrymandered districts” — with those new district changes possibly helping to get new lawmakers in charge that hold views more representative of most Michiganders.
On Wednesday, the Democrat re-upped her 2019 prediction that Roe will be successfully overturned. The Advance asked Nessel about what this would mean for Michigan, what it’s like having two college-aged children for whom active shooter drills are the norm.
It is “the worst and most helpless feeling you will ever have as a parent,” Nessel said, having her kids text her while sheltered in place at school without knowing whether there could be a real threat to their lives outside their door.
Prior to becoming the state’s chief law enforcement officer, Nessel was a private attorney who notably argued a Michigan marriage equality case that ultimately became part of the landmark Obergefell v. Hodges U.S. Supreme Court decision. The Advance also talked with Nessel, the state’s first out LGBTQ top official, about the future of that case.
The following are excerpts from the interview:
Michigan Advance: We can start with the Oxford School shooting Tuesday. What has been your involvement in the investigation?
Nessel: When the shooting initially happened, we offered our assistance to the Oakland County Sheriff’s Department. But since that time, we’ve been coordinating with the Oakland County Prosecutor’s Office. I’ve talked to Prosecutor [Karen] McDonald several times. My team has been consulting with her team. We’re offering just any assistance or support that we can lend, and, I think, trying to review all the evidence together and collaborate as much as possible. I have a really close relationship with Prosecutor McDonald. This is a pretty big case for her first year in office, but I think she’s handling it very well.
Michigan Advance: The charges against the shooting suspect, particularly the terrorism charge — do you think those are fair?
Nessel: Yeah. Absolutely. I fully support Prosecutor McDonald in her charging decision.
Michigan Advance: What can be done on gun reform in Michigan since our state’s GOP-led Legislature won’t act?
Nessel: Well, how much time do you have? You use that last caveat, right — “since they won’t act.” There are so many common sense gun laws that could be put in place right now, that could’ve prevented what happened [Tuesday] altogether. Some of these are laws that they have in other states. These are not laws that infringe upon a person’s Second Amendment right to bear arms. They’re just common sense reforms that would protect our society, and many which would specifically protect our children.
But I think what we’re going to have to do at this point — understanding, of course, that we’re going to have our once-in-a-decade redistricting and our once-in-forever opportunity to have non-gerrymandered districts — I think that we are likely to have more moderated districts where you’ll have a competitive district that had been gerrymandered for so long, instead of it being a rush to the base and to support the concept of “anyone should have any kind of gun, any time, any place, under any circumstances,” which is really what the Republican Party subscribes to now.
… Even 10 years ago, it would be hard for me to picture even Republicans supporting the ghost guns, and now you do. That is what you have at this point because anything that’s any kind of regulation on any kind of firearm is impermissible in accordance with today’s Republican Party.
I think we have to view what happened [Tuesday] as an opportunity to make progress so that the lives of these poor kids, whose lives are cut short, or those who are badly injured, or even for the kids, the survivors who were there and present and will forever be impacted by what happened that day, even if they themselves were not injured, we have to do something to advance these bills. If that means having to elect new people for the Legislature with a new mindset, who understand the great importance of reasonable gun laws, then so be it. Then that is what we have to do.
Whether it has to do with gun laws that a vast majority of Michigan residents support, or whether it has to do with the other big news of the day which is the SCOTUS arguments. The vast majority of Michiganders think that Roe ought to be upheld and believe that a woman has a right to have a medically safe abortion [and] that’s between her and her doctor. Any of these issues where the Republican Party is in the extreme minority when it comes to how the public feels and how residents of the state of Michigan feel.
But this will be, I guess, our opportunity at the polls to say, ‘We want to have a legislature that is more in keeping with the way that Michigan residents think and what our values and our belief system is.’ … Honestly, someone has to hold these folks that are running for my seat accountable, because no one’s asking these difficult questions. … People need to know how they feel about [them], so they can see the differences between the parties.
Michigan Advance: As a parent, what conversations have you had with your kids about lockdown drills and active shooter situations?
Nessel: Well, my kids are freshmen in college now. But when they were in high school, they did have times where they were locked down. I think once it happened two or three times in a week where they had reports of somebody who had a firearm on campus. … I had that horrible experience of having my kids text me and call me and say, ‘We’re sheltering in place,’ and wondering if there was an active shooter somewhere on campus. It is the worst and most helpless feeling you will ever have as a parent. It’s totally unnecessary under most circumstances. We don’t have to live like this.
We don’t have to live in a place where we have active shooter drills. When I was a kid, we didn’t because we didn’t allow anybody to have an assault weapon. They are military-grade weapons; we didn’t allow that when I was a child. But we do now, so kids have to grow up in that atmosphere. But there are so many simple laws that can be passed; universal background checks, red flag laws, these CAP [child access prevention] laws. We could change the minimum age for purchase from 18 to 21. Why can you buy a deadly weapon when you’re 18 but not a Budweiser? I mean, it’s outrageous.
It’s so common sense. I think for most people, if they hear that, they will understand and they will agree. But the Republican Legislature does not reflect the values of most people in this state. I think that these are going to be election year issues for next year, but they’re incredibly important ones. The accusation that’s always levied is, ‘Oh, you’re trying to make this into a political issue.’ Well, guess what? It is a political issue. The safety of our children and the lack of laws that are in place to protect our children is a political issue. We have to do better. We have to be more aggressive in fighting to protect our children. Frankly, if somebody in my position who’s the top law enforcement official in the state sits down and sits on my hands and zips my lips because I don’t want to be controversial, even though I know it’s the right thing to do, then I don’t deserve to be in office in the first place.
Michigan Advance: [On Wednesday], SCOTUS heard oral arguments in the Mississippi abortion case [Dobbs v. Jackson Women’s Health]. More than two years ago, you said that you believed the Supreme Court will overturn Roe v. Wade. Do you think they will do so with this case?
Nessel: Yes. Listen, I don’t have a Magic 8-Ball — that’s not true. I do have a Magic 8-Ball. But I didn’t shake it and be like, ‘Will Roe be overturned?’ Magic 8-Ball says, ‘Possibly.’
Here’s my view on this. These Supreme Court justices had to go through a vetting by a number of groups, including groups like the Heritage Foundation. This was a litmus test question for them to make [former President Donald] Trump’s list. “Would they overturn Roe v. Wade?” Unless they were confident that the answer to that question was yes, they didn’t move forward in the process. [Neil] Gorsuch and [Brett] Kavanaugh and Amy Coney Barrett, they would not be on the bench right now if they weren’t willing to overturn Roe v. Wade, and if they weren’t interested in overturning Roe v. Wade. I mean, I don’t think they would’ve taken these cases.
… And then, of course, the Texas case, as well, which is outrageous. … I mean, the Texas case is just insane. Just from a standing standpoint, I don’t know how you justify allowing random people to pursue civil charges against them when they’ve never even met in their life and whose life has no impact on them whatsoever, can somehow find an injury to that person. That in itself is just outrageous.
I think, for all intents and purposes, they are determined to gut Roe.
– Attorney General Dana Nessel
But the Mississippi case, which is, of course, a more traditional abortion ban, I don’t think they would’ve taken it if they weren’t prepared to uphold the Mississippi law, which would mean overturning Roe. … I think, for all intents and purposes, they are determined to gut Roe.
Whether they do that in plain language or if they do a workaround — which basically is like, ‘We’re not going to say we’re overturning Roe v. Wade, but in effect, our ruling will mean that Roe has no value to it anymore’ — ultimately, it will mean the same thing for the state of Michigan. And that is, of course, that abortion will be outlawed and will become a felony.
Michigan Advance: Do you believe that Obergefell v. Hodges [legalizing same-sex marriage] and Griswold v. Connecticut [outlawing contraception bans] could also be overturned?
Nessel: I do. I don’t know if they’ll do it all at once in this case, although one could argue that these are the pyramid of right to privacy cases, which start with Griswold and then go to Roe and then later Obergefell, but also Lawrence v. Texas, the sodomy laws. And, of course, keeping in mind these are all right to privacy cases, they all have the same foundation. So once you shake up that foundation, all the rest of them could potentially crumble down. But I don’t see it all happening at one time. In the future, do I see there being challenges to Obergefell? Absolutely. With this court, I think that Obergefell is going to be a short-term decision.
Michigan Advance: And Griswold?
Nessel: Oh, man. Can you even imagine? I don’t know. I don’t know if there’s anything at this point that I’d put past this court. That’s a tough one. I mean, it’s possible. … I would have to look at what nations permit bans on birth control. But I don’t know. You’d have to drive to Illinois, to Chicago, to get your birth control pills? I don’t know. Maybe. Maybe you will. Or maybe they’ll have one of those things where people end up just ordering it online from another state and shipping it in, smuggling in birth control pills illegally. I don’t know. It’s possible.
Michigan Advance: If Roe is overturned and abortion access falls back to the states, what would that mean for Michigan, particularly since we have a 1931 state law criminalizing abortions?
Nessel: What it’ll mean is several things. One, if you have a state attorney general that wants to pursue those cases, then you’d probably have a state AG that goes after medical providers and, in the event they are able to make determinations that medical providers are providing abortions, can criminally prosecute them, and, again, can force women to cooperate. And, if they don’t cooperate, can hold them in criminal contempt for not honoring subpoenas, or refusing to take the stand in cases in which they’re called to testify, things of that nature.
And that’s for state … and county prosecutors as well. So if you have county prosecutors that want to pursue those cases; they have the ability to do that. It would mean that from a licensing perspective, it’s likely that those physicians or medical providers that perform abortions, that they will lose their licenses to practice medicine. Which is why I think a lot of people would probably do that, even if they’re in a Democratic county.
Let’s say they’re in Washtenaw County where they know that [Prosecutor] Eli Savit is not going to prosecute, and they have a state attorney general that is not interested in prosecuting medical providers for a medical procedure. Still, I think a lot of clinicians will say, ‘I don’t want to risk losing my license.’ Then you have the health insurers who will say, ‘Well, we understand that you’re performing an illegal procedure in that state.’ It’s probably a term of most insurer’s agreements [that] you can’t perform illegal procedures, and if you do, you can lose your malpractice insurance.
Frankly, if somebody in my position who's the top law enforcement official in the state sits down and sits on my hands and zips my lips because I don't want to be controversial, even though I know it's the right thing to do, then I don't deserve to be in office in the first place.
– Attorney General Dana Nessel
So I think what you’ll do is you’ll have a lot of physicians that, it’s not because they’re philosophically opposed [to performing abortions]. They don’t want to be criminally prosecuted. They don’t want to be sued. They don’t want to lose their licenses, and they don’t want to lose their insurance, so they’ll stop.
… The problem with that is you have all kinds of instances where this is a very important procedure to perform. If it’s an ectopic pregnancy, I mean, you’ve got to make a snap decision. You have to perform that procedure immediately, or that woman may very well die. If you are thinking to yourself, ‘Oh my God, am I going to be prosecuted for this? I’m in a county with a very aggressive county prosecutor,’ maybe you just let that woman die because you’re so afraid that you’ll be prosecuted otherwise. I don’t know.
Or if there’s some other sort of procedure where you’re like, ‘Well, let’s see. Will the woman be just badly injured if I don’t perform the procedure, or will she die? I guess I’ll just have to wait and find out which it is.’ … I mean, I’m saying that these are all the kinds of situations that nobody’s had to think about in 50 years, but we should be thinking about them now.
Michigan Advance: Do you still stand by your statement that you will not prosecute anyone seeking an abortion in Michigan?
Nessel: I’m going to say this with a caveat. I think if you have people who do not have the medical training and experience to be able to legally perform an abortion, if you have people who are actual back alley butchers that are offering quote-unquote “services” that they don’t have the expertise to provide and so they’re injuring women, I could see prosecuting people under that set of circumstances.
But that wouldn’t be people who are now licensed medical providers who are properly trained. Those are the people who are taking advantage of women who are desperate for an abortion and so provide them illegally. When I say illegally, I mean in a manner that would be illegal right now to do.
Originally published December 3, 2021 on Michigan Advance. It is shared here with permission.
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