Gov. Gretchen Whitmer may have to testify next week in a hearing that could decide whether Michigan prosecutors are allowed to criminally charge abortion providers under a state law that bans almost all abortions.
Whitmer was served a subpoena Monday issued by David Kallman, an attorney representing prosecutors from Kent and Jackson counties. The prosecutors are among 13 previously sued by Whitmer in a case the governor hopes results in the Michigan Supreme Court finding that the state Constitution protects the right to an abortion.
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Whitmer used this lawsuit to successfully obtain a court order that bars local prosecutors from enforcing the 1931 law that bans all abortions except those performed to save the life of a pregnant person. While her legal team argued allowing enforcement of the law with pending legal challenges would irreparably harm Michigan residents, Kallman says Whitmer needs to prove how the prosecutions would cause her specific harm.
"How is the governor being harmed if a prosecutor chooses to prosecute a doctor under the abortion statute? I mean, the doctor might have an argument ... maybe the mother who wants the abortion might have an argument? But how does the governor?" Kallman said Monday afternoon.
"She's the one that brought the lawsuit. I think we have the right to question her on the merits of her request for an injunction."
A Whitmer spokesperson did not immediately respond to a request for comment.
The governor's lawsuit is one of several filed in anticipation that the U.S. Supreme Court would overturn Roe v. Wade, the 1973 ruling that determined there was a national constitutional right to an abortion.
A separate lawsuit, filed by Planned Parenthood of Michigan against Michigan Attorney General Dana Nessel, prompted Michigan Court of Claims Judge Elizabeth Gleicher to issue an order in May that sought to bar prosecutors from charging abortion providers if Roe were overturned.
But the Kent and Jackson county prosecutors challenged that ruling, asking the Michigan Court of Appeals to overturn Gleicher's temporary injunction. While the appellate court ultimately sided against that request, it did determine that Gleicher's order did not apply to county prosecutors.
That ruling spurred a flurry of legal action, including Whitmer's request for a temporary restraining order. While Whitmer wants to use a special authority that allows the Michigan Supreme Court to immediately take up her case, she had to file her lawsuit in a local court before attempting to use that power.
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The governor's team had filed in Oakland County Circuit Court in April, prompting them to file the request for a restraining order in the same court after the appellate panel's decision.
Oakland County Circuit Court Judge Jacob Cunningham granted the original request on Aug. 1. After a 90-minute hearing two days later, he extended the order through Aug. 17, and scheduled a meeting to discuss the possibility of implementing an injunction that could further bar abortion-related prosecutions for the same day.
Kallman wants Whitmer to testify during that Aug. 17 hearing. He said in theory the governor's team could file a motion in an effort to prevent her from testifying, but he wasn't sure what authority they would have to stop it from happening.
"The only thing we want to question her about is her claims in this lawsuit. I don't see how that's privilege or that there's any kind of executive protection or anything," Kallman said.
"She's the one that brought the lawsuit. I don't see how she gets around to being subject to the give and take of a courtroom to prove her case."
Planned Parenthood and Whitmer recently asked the Michigan Supreme Court to take up their legal questions about state constitutional protections for abortion. But ultimately, Michigan voters will likely have the final say on abortion rights in the state. A petition drive to change the state Constitution so that it explicitly protects abortion rights garnered more than 750,000 signatures, according to organizers of the campaign.
That should be enough to ensure the question goes before voters this fall, although officials still need to verify the veracity of signatures and formally approve the proposed amendment for the ballot.
Contact Dave Boucher: firstname.lastname@example.org or 313-938-4591. Follow him on Twitter @Dave_Boucher1.
This article originally appeared on Detroit Free Press: Whitmer subpoenaed to testify in Michigan abortion lawsuit