In one month, Dana Nessel erases many of Bill Schuette’s federal pursuits
In her first month, Dana Nessel has joined cases protecting provisions of the Affordable Care Act and dropped support for several lawsuits that challenge abortion rights.
by Riley Beggin (Bridge)
Michigan Attorney General Dana Nessel capped a dizzying first month in office by reversing the state’s position in more than a dozen cases previously steered by her Republican predecessor.
Nessel aligned with three other states and Gov. Gretchen Whitmer in seeking to join a federal lawsuit protecting the Affordable Care Act, which previous Attorney General Bill Schuette long opposed.
The progressive Democrat also pulled the state from eight cases related to abortion, LGBTQ rights and the separation of church and state — cases Schuette had joined. In addition to those actions, last Thursday, Nessel for good measure withdrew from cases challenging federal environmental regulations and filed legal briefs advocating for mandatory birth control coverage.
“As Michigan’s Attorney General, I will not use this office to undermine some of the most important values in our state,” Nessel said in announcing the state’s reversals.
The early-term decisions fulfill several major Nessel campaign promises and illustrate the whipsaw nature of state policy when one political party sweeps another from office.
Schuette had battled the EPA on pollution standards and joined several suits opposing the ACA.
“Intervening on ACA has been a top priority for the governor and the attorney general since before they took office,” said Nessel spokeswoman Kelly Rossman-McKinney. The EPA reversals were “a matter of commitment to protection of the environment. And the other cases are simply cases where we felt there was no reason for the State of Michigan to be involved in these cases.”
Here’s a breakdown of the federal cases Nessel has joined and left since she took office last month.
Health care
Defending the Affordable Care Act
Case: Texas v United states
Status: Joined
What it does: This lawsuit, initiated by Texas but joined by 19 other states, argues that the Affordable Care Act — also known as Obamacare — should be struck down on the grounds that the individual mandate (now without a penalty) is unconstitutional. Nessel joined with Colorado, Nevada and Iowa in requesting to join the case in support of the ACA. 16 other states already support the law in the case.
Case: State of California v Azar and Commonwealth of Pennsylvania v. Trump
Status: Joined
What it does: In her first amicus briefs as attorney general, Nessel joined with Massachusetts and other states in supporting two lawsuits challenging the U.S. Department of Health and Human Services for exempting religious groups from having to provide birth control coverage to employees under the Affordable Care Act.
Environment
Greenhouse gases
Cases: West Virginia, et al v EPA, et al and North Dakota v EPA
Status: Withdrew
What they do: Both cases challenge whether the Clean Power Plan — an Obama-era rule that is intended to combat climate change by restricting carbon dioxide emissions — could legally restrict emissions from existing and new power plants. The U.S. Supreme Court delayed those rules in 2016, and President Trump’s administration has since moved to replace them.
Power plant toxins
Case: Murray Energy Corporation v EPA
Status: Withdrew
What it does: The suit challenges a 2015 EPA regulation intended to curb ozone emissions. Murray Energy and states that joined it argue the limits are achievable.
Oil and gas
Case: American Petroleum Institute v EPA
Status: Withdrew
What it does: Suit originally challenged whether the EPA can establish air quality standards based on a hypothetical threat to public health. Nessel said it now challenges the rules regulating methane emissions from oil and gas operations.
Abortion and contraception
Abortion for undocumented immigrants
Case: Garza v Azar
Status: Withdrew
What it does: The most high-profile of the reproductive rights cases Nessel withdrew from, this involved an undocumented Mexican immigrant who entered the U.S. as an unaccompanied minor and who requested an abortion. Her abortion was initially denied. The case challenges whether undocumented immigrants in federal custody have the right to seek abortions.
Abortion clinic requirements
Case: EMW Women’s Surgical Center v Glisson
Status: Withdrew
What it does: This case would close Kentucky’s last abortion clinic on the basis that its hospital and ambulance agreements had technical deficiencies. It defends a Kentucky state law requiring abortion clinics to have “transfer agreements” with hospitals and ambulance services.
Abortion of babies with Down syndrome
Case: Pre-Term Cleveland v Himes
Status: Withdrew
What it does: This case confronts the constitutionality of an Ohio law that criminalizes abortions if one of the reasons for the abortion is that they suspect the baby has Down syndrome. Michigan had supported the Ohio law under Schuette’s stance.
Abortion clinic funding
Case: Planned Parenthood of Ohio v Himes
Status: Withdrew
What it does: In 2016, Ohio denied Planned Parenthood clinics $1.3 million in federal funding for programs unrelated to abortion (such as breast and cervical cancer screenings and HIV testing). Planned Parenthood argued the funding withdrawal was retaliatory. Michigan had supported the Ohio Department of Health in refusing funding.
LGBTQ rights
Job discrimination
Case: Horton v Midwest Geriatric Management
Status: Withdrew
What it does: A St. Louis, Missouri-based company withdrew a job offer when it discovered the prospective employee was gay. A U.S. Appeals court dismissed the case on the grounds that the Civil Rights Act doesn’t protect LGBTQ people from job discrimination, and had Michigan joined other states in urging another Circuit Court not to take up the case.
Religion
Religious symbols in government
Case: Freedom From Religion v Lehigh
Status: Withdrew
What it does: Michigan had supported Lehigh County, Pennsylvania’s choice to include a cross at the center of its official seal. An atheist group sued the county, arguing it violates the separation of church and state.
Tax exemptions for religious leaders
Case: Gaylor v Mnuchin
Status: Withdrew
What it does: This case questions whether it is unconstitutional for clergy to get a tax exemption for housing. An atheist group argues the exemption violates the U.S. Constitution’s establishment clause. U.S. Secretary of the Treasury Steven Mnuchin argues if the rule is repealed it would be discriminatory against religion, a position Michigan under Schuette supported.
Secular prayer in Congress
Case: Barker v Conroy
Status: Withdrew
What it does: This case challenges the U.S. House of Representatives, which denied an atheist’s request to offer a secular invocation at the beginning of session on the grounds that he did not fit the definition of a “religious clergyman.” Michigan had opposed the atheist group’s stance.
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