On the front lines of the fight for reproductive rights

An interview with Michigan Attorney General Dana Nessel

click to enlarge Michigan Attorney General Dana Nessel. - Courtesy photo
Courtesy photo
Michigan Attorney General Dana Nessel.

We’ve known the Roe v. Wade decision was coming for a month now. In fact, we should have known it was coming even before then. We should have known it was coming when Sen. Mitch McConnell subverted the U.S. Constitution to deny President Obama a Supreme Court Nominee. We should have known it was coming when that seat went to Justice Neil Gorsuch. We should have known it was coming when they rammed Justice Brett Kavanaugh into a seat. And we should have known it when they nominated Justice Amy Coney Barrett to fill the seat left by the untimely passing of Justice Ruth Bader Ginsburg.

We should have known it all along. But until the other shoe dropped last month, I didn’t realize how much I had been denying what was obvious before our eyes.

Pondering the full scope of the implications of the Supreme Court’s obscene ruling, I’m realizing just how many facets of life this will destroy for millions of people. It’s easy, when your job has you sitting in robes in a sterile court room to think that the issues you’re deciding upon are sterile, too — that they exist only in the abstract counterfactuals you manipulate in your mind. But having trained in clinics and hospitals to treat real people in real places, one appreciates just how much messier life really is. Most people don’t realize they’re pregnant for weeks or even months after they’ve conceived. Decisions about viability rely on probabilistic evidence that’s easily second-guessed by an expert witness in court. People who are desperate to have children rely on in vitro fertilization, which involves creating several embryos the destruction of which this ruling could conjure as abortion.

Michigan’s Attorney General, Dana Nessel, saw all of this coming in its rawest, most complex permutations. She warned us about it. She and I ran for office at the same time, and I was honored to read her official nomination as the Democratic candidate back in 2018. During her campaign, she released an ad in which she was holding a hanger in a proverbial back alley, talking about how critical it was that she be elected to protect Michiganders should Roe fall. She was widely panned by establishments on both sides of the aisle as alarmist.

Yet here we are. She finds herself now as one of the last lines of defense in a state with a 1931 abortion ban that renders aiding and abetting an abortion in any way a felony. So today, I wanted to bring you her perspective from an interview I recorded for my podcast America Dissected. We transcribed and edited it for clarity:

Abdul: A.G. Nessel, thank you so much for taking the time to join us — particularly in this moment when it feels like crisis upon crisis, none more urgent than the fall of Roe. Can you tell us what the fall of Roe means to you?

Dana: I had been predicting this, as you know, for many years — especially in the last month. We were certain that this was going to happen based on the leak from the court.

But on Friday, I really can't even describe the feeling that I had. The hollowness and desperation, knowing that this fundamental right that I've enjoyed my entire life swept out from beneath us. I don't think it's a secret that I am not a woman of reproductive age any longer. But I can't imagine during the years that I was knowing that, abortion would be not just unavailable in Michigan, but a felony.

Abdul: When you ran you cut an ad, which a lot of folks in the sort of establishment across both parties scoffed at. You shot the ad in a back alley, holding a coat hanger to highlight the possibility that this might happen and that if you were elected, you'd be in a position to have to defend the right to choose. How does it feel that you're now in that position where it'll fall on your shoulder to protect abortion rights for Michiganders?

Dana: I don't feel great about it. Obviously, I wish that this was a turn of events that never occurred. It was so clear and obvious to me that it wasn't a possibility, but a likelihood.

During Justice Kavanaugh’s confirmation hearings, those who were close with then-President Trump made it very clear that there would be a strict vetting process for anyone who was going to make the shortlist for a nomination for the Supreme Court. Groups like the Heritage Foundation, were going to ensure that there were no David Souter's anymore. These groups ensured that anybody who made their shortlist — Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett — would be prepared to overturn Roe. That was very clear.

And looking at the ages of the Justices going into Trump’s term, I was positive that Trump would get at least two appointments. I didn't know he'd be getting three. That's a lot for any president. They’ve had the votes even since Trump’s administration. It's almost shocking that it took a few more years for them to actually overturn Roe.

And then as soon as they took the Mississippi case and refused to put a stay in place on the Texas case, the writing was on the wall. It was clear this was going to happen.

Abdul: So now that the right to a safe legal abortion up until the the time of of fetal viability is gone, it falls to individual states. In Michigan, what is the current law on the books?

Dana: There's actually a number of them. There's a 1931 law that's been the subject of a lot of discussion lately. That is a four-year felony offense to provide an abortion — for physicians and anybody who aids and abets in the provision of an abortion. That can be the assistant attendant medical staff, or even the receptionist who makes the appointment. If he or she knows what the appointment is for, they are just as guilty as the principal actor. For all of the people involved, it’s a four year felony. There's also a one year misdemeanor that's involved for dispensing abortion medication. And what a lot of people don't know is there's a manslaughter provision that remains on the books for certain circumstances.

So there's a litany of abortion-related laws that prevent the availability of abortion — at least legally. And I should say this: there's no exception for rape. There's no exception for incest. The only instance in which an abortion would be legal is to “save the life of the woman.”

But we don't have any case law and we don't have anything in the statute that provides a definition of that. So it's unclear if you’re exempt if you have an issue like high blood pressure, which can lead to mortality while either during the course of a pregnancy or during childbirth. But if that’s a 40% chance, is that enough to save her life? I would say it's doubtful. I don't know if that would be considered enough in a court of law.

Abdul: When you start putting limitations like this in place, they presume that medical science is perfect and it's a series of yes or no decisions, rather than what it actually is, which is a series of probabilities that are best left to a practitioner to make a decision. And when you start putting potential and legal consequences on the end of making the “wrong decision” that someone in a court of law could second guess, then you're going to start to see a lot more conservative decision making. It freezes the capacity of doctors in that circumstance, which is, in theory, carved out in the law. Not only will this mean that people will die when obtaining unsafe and, now, illegal abortions, it also means doctors are going to be far less wiling to say when a mother is at true risk, due to the fear of the court.

Abdul: Now that Roe has fallen, what does that mean for access to a safe, legal abortion in the state of Michigan?

Dana: Right now, there is a preliminary injunction in place. There are a couple of cases that were filed prior to the Dobbs leak. One is a case that the governor filed against a number of county prosecutors in jurisdictions where they have abortion clinics available.

And one is a case where Planned Parenthood sued the state. It was assigned to Court of Claims Judge Elizabeth Gleicher. It is an interesting case. Planned Parenthood was essentially saying we want the attorney general not to enforce this 1931 law. And I said, great, I'm not going to enforce the law. But the judge issued a preliminary injunction to stop the enforcement of this four-year felony for not just me, but all 83 county prosecutors. Her reasoning was that she felt the plaintiffs, Planned Parenthood, were likely to prevail on their claims, so she put a stay on the enforcement of this provision during the pendency of the litigation.

That's a long way of saying for right now this stay is in place. However, the Republican legislature has intervened in the case and they're asking for the Court of Appeals to set aside that preliminary injunction. If the Court of Appeals listens and sets aside the preliminary injunction, then the 1931 law would be enforceable immediately. But we don’t expect a decision until August at the earliest.

Abdul: Should we get to August and this law becomes enforceable, what happens then?

Dana: Hopefully what will happen is the injunction will stay in place. But if it does not, or if the law isn’t changed via the Reproductive Freedom for All ballot proposal, abortion will be illegal in our state except in circumstances involving saving the life of the mother.

I think that if that happens, physicians are going to be afraid of losing their professional liability insurance, which no doctor wants to practice without. But I represent LARA, the Board of Medicine, the Board of Nursing, and I am not going to strip any physician or nurse of their professional license in the state of Michigan.

I think physicians will be in a real bind because if they if they don't perform the abortion and the patient dies, you could see a lawsuit ensuing. But if they do perform the procedure well now, they can be prosecuted. So I think it's a no-win situation for physicians. And I do think that there are going to be times where you have a patient that is in dire need of medical assistance and the doctor is too afraid to perform the procedure.

And let's be honest. I mean, you're going to have people all around the state that just are not going to have the wherewithal to to get to a state where it's legal. The closest state will be Illinois. And for a lot of folks in the state — in Alpena, in Gogebic — there's no way to get anywhere. Others can’t get anywhere because they don't have a vehicle or a driver's license. They can't even get to the next county over, let alone to Chicago.

Abdul: It seems that in the short term, should this law take effect, you won't prosecute and you'll have a number of county prosecutors who won't prosecute. Will it be the kind of situation where you have safe haven counties where the abortion ban will not be enforced? You could imagine someone coming to Ann Arbor — Washtenaw County prosecutor Eli Savit who won't enforce and then the state won't enforce. Is that what we're looking at?

Dana: It would be nice for that to happen, but here's the problem. Several of these provisions have a six-year statute of limitations. Now, come to November, say I don’t win. My opponent has been very clear that he will prosecute in all instances. And he's actually said he doesn't believe there are any circumstances where an abortion is required to save a woman's life.

But even if I win in November, myself and Governor Whitmer are going to be term limited out. That would leave the opportunity for another Attorney General to come in and investigate something that happened five years ago. The chilling effect is not knowing.

There will be some doctors that will stand up and say “No, I’m going to do this no matter what.” But I don’t think the hospitals or health plans they’re working for will be okay with that. They might get dropped.

It would be nice to think, “oh, great, Washtenaw, Wayne, Ingham, and Oakland would be safe haven counties.” But I don't think it's going to work that way. Abortion is going to be widely unavailable for people in the state. People will have to travel to another state or they'll have to illegally smuggle abortion medication across the border.

Abdul: We've already seen one of the state's biggest health care systems change its policies despite the fact that abortion remains legal in this state, as you explained. Spectrum Beaumont has announced that they will not perform abortions unless they are in the instance where there is a question of the safety of the mother. And so that chilling effect is already taking place. It's already happening in our state.

Dana: They ended up walking that back a few days ago. They received a lot of calls from elected officials who were upset because they weren’t following the current state law. But also, I think there were a number of patients who called. State Representative Regina Weiss, who represents Huntington Woods, is four months pregnant with twins and she has a Beaumont doctor. She said, “I'm really scared. What if something goes wrong with my pregnancy? I'm switching doctors.” I think there were enough people that threatened to switch doctors since it's still legal here and there are other health care systems that will provide a board of procedures if necessary.

Abdul: When I saw it, I was flabbergasted that this was the case. But you can come to appreciate where a institution might say, “well, this is where we think things are going, so we might as well get ahead of it now, or we can leverage the Supreme Court's smokescreen here to appeal to a particular segment of the population and engage in the political overtures that this is already allowing us to make.”

Dana: Let me just interject something that I know is not comfortable to talk about, but we have to have this conversation. There were roughly 28,000 abortions in Michigan last year. We're already failing with the foster care system as it is right now. The state is constantly facing significant lawsuits because not enough money is placed into the foster care system. And how are we going to manage that? Because I haven't heard anything from Republicans in the legislature who appealed the Court of Appeal’s ruling. I haven't heard anything about appropriating additional money to help poor women during the course of their pregnancy. That's a lot of additional children that will be born that will require an insane amount of resources. And again, are we just trying to ensure that these children are born and then we don't care what happens to them afterwards? Or are we dedicated to helping them after the point in which they come out into the world?

Abdul: You're raising this point where the only way you can plausibly call their agenda pro-life is if you think life ends at childbirth. There's no investment in people who are alive today. You couldn't conjure a world where the same folks who have worked so hard to take away the rights under Roe v. Wade would also support universal child care or paid family leave. I mean, it is this notion that you only care about that point to birth and then you let go. It's absurd to me. Your point is well taken. What are we doing? Without that kind of expansion, we're going to be in a situation where we're left with children whose parents do not have the means to be able to care for them, and where the state has fundamentally disinvested in the system to care for them. And you appreciate the hypocrisy of this position when you think about it that way.

Dana: What really bothered me about the majority opinion — of the many things that bothered me — is Justice Alito goes to great lengths to talk about all the childless couples out there that would love to adopt these kids. And it's so naive to say that. I'm sure there is quite a market for perfect, no health issues, little white babies with blond hair, blue eyes. I'm sure they would get snapped up in a second. But let me tell you this, for the children that don't get adopted — oftentimes children of color, many times children with these extreme challenges mentally or physically — that is a lie.

Abdul: The other part of this, which is incredibly disingenuous, is that the same people who want to impose forced pregnancy want to make zero investment in preventing pregnancy that is unwanted to begin with. And that is another piece of this that I just cannot wrap my mind around. To say that we're not going to invest at all in helping you prevent an unwanted pregnancy. And then if you should get pregnant, we are going to take away your right to a safe, legal abortion. And then we're not going to invest in the child after they're born. It is just absurd to me. And when you look at Planned Parenthood as an organization, they spend 97% of their dollars on pregnancy prevention. And so I just can't understand the world where you think that somehow the pregnancy that is forced is the best possible outcome. And that's the world they're constructing.

Dana: It's even worse than that because Justice Thomas in his concurring opinion said he believes that Griswold v. Connecticut was wrongly decided. That was the seminal 1965 case that made contraception access legal to all in this country.

But, you know, all of the Republicans who ran against me believe that Griswold v. Connecticut was wrongly decided and that would allow state legislatures in all states to create a new felony for those who want to sell and purchase and use birth control. They can literally make it a crime in this state to engage in safe sex. That’s not just a birth control issue, it’s also a sexually transmitted disease issue. It’s a very bad idea to do that.

I feel like the religious right has completely taken over this country and they're making decisions for all the rest of us, even though the vast majority of Americans want birth control to remain legal. And yet we have this tiny fraction of the public — or I should say those in positions of power — who are making decisions for all the rest of us. And I think that our allies overseas are just absolutely horrified by what's happening in America right now.

Abdul: To your point, this wasn't the only Supreme Court case that came down. Just last week, we saw a case that interpreted the Second Amendment in the most extreme way, which gets us to this world where anyone can have any gun anywhere at any time. And we've also seen a case that they're about to rule on around the administrative state and what agencies like the EPA or the FDA can do in terms of interpreting the law and being able to promulgate rules. We're seeing a major takeover almost by a minoritarian piece of our society through the courts to rewrite the rules of American life. What do you make of this and how do we fight back?

Dana: You know, I don't usually pitch books or anything while I'm doing interviews, but there's this book I read called Dark Money. It sort of explains this long term plan by the Koch brothers, the devices of many others, and how they were going to eliminate basically all environmental regulations and and issues like the Second Amendment, abortion access, etc. And their plan seemingly has worked out well for them. They were really in it for the long game.

It’s going to be hard with the Supreme Court being what it is — three Trump appointees, all very young. They’ll probably have another three decades on the bench. That’s a long time. So the only thing we can really do is vote, vote, vote. Make sure we keep both chambers federally and that we get additional Democrats into the Senate who will defy the filibuster. And elect a few more Democrats in the state legislature, keep the governor’s office.

We need federal laws in place to protect things like marriage equality. If we had one we wouldn’t have to worry about Obergefell v Hodges. Likewise, in Michigan, if we had laws in place we’d be more safe. We can do that. I understand that people want to ignore politics and it's so overwhelming. And there are things happening every 3 minutes and you don't know who to believe. But people need to get out and vote each and every election. This has to be a regular function of people's everyday lives or our democracy will cease to exist. And we're on the cusp of that right now. We're seeing what happens when people stop paying attention and the government can start doing whatever it wants because you haven't investigated enough and you haven't invested enough to devote wisely.

Abdul: Where can folks go to learn more about you and support you and your campaign?

Dana: Well, you can go to my website dananessel.com.

But, if you’re reading this, you are already very interested in these subjects. But you might have friends or family members or people in your community that aren't as tuned in. And I think it's incumbent upon all of us to make sure that each and every person understands the consequences of sitting out this election. I know that people are sick and tired of hearing like, well, this is the most important election of our lifetimes. Okay, well, no, it's this one. Well, now it's the next one. Oh, gosh. When is that ever going to end? Well, it is never going to end. That's why you have to vote every time. Every election is important, but this one now is especially important because the people who are running against myself and Jocelyn Benson are the most far right, fringy candidates that have ever appeared on the ballot for a major party in the history of our state. That's not hyperbole. It's true. Republicans will tell you that.

Abdul: They’re proud of it.

Dana: They are there to install Donald Trump into his second term and for no other reason. And they have said as much and he has said as much. So if you believe in the concept and the antiquated notion of democracy, then you really have to support Jocelyn Benson and myself, I know we're down ballot. It's not as sexy as being a United States senator or being a governor. But this time, especially, our offices are equally as important.

Abdul: Absolutely. Attorney General Nessel, we really appreciate you taking the time.

Dana: Thanks for having me. I appreciate it.

Originally published June 28 in The Incision. Get more at abdulelsayed.substack.com.

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Abdul El-Sayed

Dr. Abdul El-Sayed is a physician, epidemiologist, public health expert, and progressive activist who served as Detroit’s health director and ran for governor in 2018. He is the author of Healing Politics: A Doctor's Journey Into the Heart of Our Political Epidemic and Medicare for All: A Citizen's Guide, as well...
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