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Criminal Justice & Legal System

Attorney says he will fight Whitmer effort to preempt MI abortion ban

a sign that says "stop abortion now" and another that says "keep abortion legal"
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An attorney said Tuesday that he will take up the case opposing Governor Gretchen Whitmer’s challenge to Michigan’s dormant statutory abortion ban.

That ban — which bars abortion except when necessary to save the life of a pregnant woman — has been superseded by the U.S. Supreme Court's decision in Roe v. Wade. But it would likely take effect if the court overturns or limits the effect of the Roe v. Wade decision, as some analysts expect it will later this year.

David Kallman said he represents prosecutors in Jackson and Kent counties who are among the 13 prosecutors named as defendants in Whitmer’s lawsuit. (The Jackson and Kent County prosecutors’ offices did not respond to messages left by Michigan Public Radio.)

Kallman said Whitmer is stretching the meaning of the Michigan Constitution to create a privacy protection that includes abortion rights. Kallman also said the governor’s lawsuit is premature while Roe v. Wade remains in effect.

“Unless and until a prosecutor tries to prosecute someone under that law, where’s the case and controversy?” he said to Michigan Public Radio.

Kallman said he’s taking up the lawsuit because Michigan Attorney General Dana Nessel has said she won’t defend the dormant 1931 state law, despite a practice by the department that allows for state lawyers to operate within “firewalls” when cases pit one branch of state government against another.

Whitmer has also asked the Michigan Supreme Court to bypass lower courts to hear arguments and make a preemptive decision. The court is accepting briefs before it determines how the case will proceed.

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