Jake May/The Flint Journal via AP
Michigan Attorney General Dana Nessel speaks during a press conference on February 21, 2019, in Lansing, Michigan.
For Michigan Attorney General Dana Nessel, Roe v. Wade is already history.
If the Supreme Court’s conservative majority moves to effectively ban abortion in certain states, Nessel believes that decision will launch an unprecedented assault on the right to privacy established by other landmark cases, most notably the 1965 Griswold v. Connecticut decision on contraception and marital privacy. Nessel spoke to the Prospect after the December 1 oral arguments in Dobbs v. Jackson Women’s Health Organization, the case concerning the Mississippi state law which prohibits abortion after 15 weeks of pregnancy. We also discussed the Texas six-week abortion ban, abortion access in states like Michigan, and the erosion of the separation between church and state, one of the foundational tenets of American democracy.
Michigan joined two amicus briefs: one filed by a states-led coalition supporting Jackson Women’s Health and another by state attorneys general backing the Justice Department challenge to the Texas law. People need to “wake up to the crude realities of how we’re moving backwards in this country,” Nessel told me.
This interview has been condensed and edited for clarity.
Defending Roe banner
Gabrielle Gurley: Will the United States be torn apart by a decision that strikes down Roe v. Wade?
Dana Nessel: Will it tear the country apart even further is probably the best way to phrase that. I don’t say I’m some savant, but I certainly predicted when Donald Trump was elected, and I had this conversation, I remember, on election night with my wife, that so many things can be undone as soon as a new president is in office. I did not see Trump necessarily getting three nominees [onto the Supreme Court], but he was going to get at least a couple, and that was going to be enough to change the trajectory of the Court.
I remember thinking, that’s the end of not just Roe. That’s the end of potentially Obergefell [which legalized same-sex marriage], of maybe Lawrence v. Texas, the sodomy case, and the end of Griswold. Everything that falls within the umbrella of the right-to-privacy cases was, at that point, in jeopardy. These three justices [Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh] were vetted by the Heritage Foundation and many other conservative groups, and the litmus test for whether they were going to make it onto [a short list for the high court] was whether or not they were willing and ready to overturn Roe v. Wade. I have no doubt that that is fully what they intend to do. They have the votes to do it.
The disposition of the Mississippi and the Texas cases will remind people why it’s important to stay engaged and to pay attention to the policies of the people that you’re voting for. So many people had just gotten comfortable with the fact that Roe v. Wade has been in effect, for the vast majority of women, for either most of our lives, or all of our lives, or for the entirety of our reproductive lives. My hope is that whatever comes out of the Supreme Court serves as a wake-up call for people.
Gurley: What would striking down Roe mean in Michigan?
Nessel: In Michigan, the second that Roe is overturned, we have an antiquated abortion law on the books, a 1931 felony law, which will spring back into effect. We have 83 county prosecutors. For those prosecutors who wish to enforce this law, they will certainly be able to do that. They will not only be able to prosecute providers. If women who receive abortions don’t want to cooperate with the investigation or with a prosecution, they can be held in criminal contempt if they don’t honor a subpoena.
You’re looking at a situation, likely, where providers will stop immediately providing abortions. Abortion would be permissible in Michigan only in the case of saving the life of the mother. However, what I could see happening is [prosecutors] basically saying to a doctor, we can still charge you, it’s up to you to demonstrate that you did the abortion because it was necessary to save the life of the mother.
Then it becomes a battle of experts. Was this woman going to die? Those that take that chance can be stripped of their licenses. Insurance carriers will say, we’re not going to provide you with malpractice insurance, because you are providing a procedure that you can potentially be prosecuted for or be civilly liable. We’ll go back to a time when people who are well-off would travel to New York or some other state, maybe Illinois. And poor women, and especially women of color, many of them will end up dying, because they will seek illegal abortions by people who are not medically qualified to perform that procedure. Or they’ll try to self-abort. I can’t tell you the number of women that I know that received abortions, and many of them, by the way, for absolutely medically necessary reasons. I’m not exaggerating, and I’m not being overly dramatic: Women will die because of this.
These cases are all based on the right to privacy and the right to govern for oneself who you’re in a relationship with, or what kind of medical care you receive, or what kind of acts you engage in sexually with another consenting adult
Gurley: What would striking down Roe mean for relations between states that ban abortion and others that don’t have strict prohibitions?
Nessel: We’re going to see the emergence of an abortion-travel industry, groups involved in assisting women who need various types of abortion-related medical care, helping to provide transportation for people who need to get to other states. I could see that happening, especially since the stigma is not what it once was back in the pre-Roe days after all of these years of being legal. There are already difficult relationships between the states: You’re talking with an attorney general whose state was sued by the state of Texas to decertify our election, so I can tell you I’m not very close with the attorney general of Texas. We’ve already had circumstances where you had states suing other states.
There are some areas where AGs work well together: The opioid settlement is a good example of good working relationships. But even that’s become more and more difficult. I will point to January 6, 2021: The Republican Attorneys General Association refused to condemn the insurrection at the Capitol. The chief law enforcement officials of over half the states wouldn’t even condemn the biggest act of domestic terrorism that we’ve had, perhaps, in American history.
It is hard for me to work with people under those circumstances.
Gurley: How might the Court deal with the strange Texas abortion law that opens the door to a kind of abortion vigilantism, awarding a $10,000 bounty to private citizens who successfully sue an individual or providers who help a woman get an abortion?
Nessel: If the Texas law survives, I don’t know what will become of American jurisprudence. It completely offends the entire understanding of “standing.” What grants you standing to bring a lawsuit is always that there has to be some injury that you can demonstrate to the court, like what kind of injury did you suffer that allows you to bring this lawsuit? If the Texas law was allowed to stand, it’s not just vigilantism as it pertains to abortion, but what other area can you sue other people where they’re engaged in an activity that you don’t approve of, but it’s got nothing to do with you whatsoever.
At least when you look at the Mississippi case, I obviously believe that this violates the right to privacy, that Roe was correctly decided, and all the rest. But at least that’s a state enforcing a law. They have the authority to do so. But the Texas case? I don’t think anyone could ever respect our courts of law in America ever again if that’s allowed to stand, it’s so ludicrous on its face. It’s one of the most ridiculous laws that I’ve ever, ever seen. I don’t know how we continue to practice law in this country if that law is permitted to stay on the books.
Gurley: What do you make of Justice Kavanaugh and other originalists who argue that abortion was not in the Constitution?
Nessel: They want to see abortion outlawed and they’re willing to make any arguments they can to ensure that that happens. There are all kinds of things that we have deemed to be crucial rights that are not enshrined in the Constitution. When the Constitution was originally drafted, we didn’t have even a fraction of the technology that we have today, and yet there are all kinds of rights that have been derived from those advances in technology.
Gurley: Is the separation of church and state now functionally nonexistent?
Nessel: Honestly, we are seeing the complete erosion of the wall separating church and state; there’s no question about it. It’s not just matters like abortion. We’ve seen it in cases involving public dollars to fund private schools, public grounds where you have religious symbols erected. It’s their vision of what Christianity is, which is not necessarily shared by every Christian in the country, irrespective of the fact that, obviously, we are a country that is based on being multicultural, multi-religion. The last I checked, you weren’t required to subscribe to a particular religion, or any religion at all, to be an American.
Gurley: How would a ruling in Dobbs v. Jackson striking down abortion protections pave the way for the Supreme Court to erode the right to privacy?
Nessel: These cases are all based on the right to privacy and the right to govern for oneself who you’re in a relationship with, or what kind of medical care you receive, or what kind of acts you engage in sexually with another consenting adult. They’re all built on one another; they’re all precedents that rely on each other. Once you start striking down some of them, it’s very likely that the others will begin to topple because most recent ones cite the former ones as the grounds upon which those are based. Once you start eliminating the right to privacy, it is a slippery slope. Many of these new justices have been vocal in the past about their disagreement with a lot of these cases. If Roe falls, and they disagree with those other cases, why not those next?
