Right To Life of Michigan v. Gretchen Whitmer, in her official capacity as Governor of the State of Michigan

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0233n.06
No. 25-1973
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RIGHT TO LIFE OF MICHIGAN, et al.,
Plaintiffs-Appellants,
v.
GRETCHEN WHITMER, in her official capacity as
Governor of the State of Michigan, et al.,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION
Before: STRANCH, BUSH, and BLOOMEKATZ, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Michigan voters passed a state constitutional
amendment that codified a right to reproductive freedom. Sixteen plaintiffs sued to prevent the
Michigan Governor, Attorney General, and Secretary of State from enforcing this amendment.
The district court dismissed for lack of standing. We agree and AFFIRM.
I.
In 2022, Michigan voters passed Proposal 3 by simple majority. Proposal 3 added § 28 to
Article I of the Michigan Constitution and declared that “[e]very individual has a fundamental
right to reproductive freedom . . . .” Mich. Const. art. I § 28(1). This includes “the right to make
and effectuate decisions about all matters relating to pregnancy, including but not limited to
prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage
management, and infertility care.” Id. After this provision came into effect, a state court held
several of Michigan’s laws unconstitutional under § 28.

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Sixteen plaintiffs sued Michigan’s Governor, Attorney General, and Secretary of State to
enjoin § 28’s enforcement, alleging that § 28 violates the First and Fourteenth Amendments to the
U.S. Constitution. Plaintiffs seek to prevent the enforcement of § 28 by enjoining each of these
state officers from enforcing the provision.
The district court dismissed the lawsuit for lack of standing and only five Plaintiffs have
appealed: Right to Life of Michigan, Celina Asberg, Grace Fisher, Andrea Smith, and John
Hubbard.
Right to Life of Michigan is a nonprofit dedicated to “protect[ing] the precious gift of
human life from fertilization to natural death” and it “proposes, lobbies for, and supports
legislation that protects the gift of human life.” R. 23, FAC, PageID 145 ¶ 13. Including legislation
that protects the unborn and furthers pro-life causes.
Celina Asberg and Grace Fisher are women who either are pregnant or have been recently
and plan to be pregnant again in the future. Asberg and Fisher allege that § 28 “immunizes from
legal liability anyone who aids or assists with [their] prenatal care, childbirth, all aspects of [their]
pregnanc[ies], and [their] postpartum care.” Id. at 154–55 ¶ 52, 55. They also claim that § 28
lowers the standard of care for medical professionals handling pregnancy-related care.
Andrea Smith and John Hubbard are parents of children who attend Michigan public
schools. Smith and Hubbard allege that § 28 permits public school officials “to aid and assist their
children with obtaining contraception; procuring an abortion; seeking ‘gender reassignment,’
puberty blocking medication, or sterilization; and engaging in sexual intercourse or other sex acts,
including with an adult, all without [parental] consent or knowledge and with impunity.” Id. at
155 ¶ 58.

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The remaining Plaintiffs now argue on appeal that they have standing to challenge § 28 as
violating their constitutionally-guaranteed parental rights.
II.
We review a district court’s order dismissing a complaint for lack of standing de novo,
accepting “as true the well-pleaded allegations in the complaint and ask[ing] whether plaintiffs
plausibly alleged their standing to sue.” Universal Life Church Monastery Storehouse v. Nabors,
35 F.4th 1021, 1031 (6th Cir. 2022). To have standing, a plaintiff must show “(1) that he or she
suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury
was caused by the defendant, and (3) that the injury would likely be redressed by the requested
judicial relief.” Thole v. U.S. Bank N.A., 590 U.S. 538, 540 (2020).
Defendants primarily assert that Plaintiffs have not suffered an injury in fact, but we need
not resolve that issue because Plaintiffs have failed to plead facts supporting the second and third
elements of standing.
Plaintiffs’ alleged injuries must be traceable to the actions of the Defendants. Plaintiffs
needed to plead “specific, plausible allegations about what the [defendant] has done, is doing, or
might do to injure plaintiffs.” Universal Life Church, 35 F.4th at 1031. So we look to the
complaint to determine what Plaintiffs claim Defendants have been doing or will do that causes
them injury. We address each Defendant in turn.
Governor Gretchen Whitmer. Plaintiffs allege that Governor Whitmer is the head of
Michigan’s executive branch and oversees twenty administrative departments. Governor Whitmer
“is sworn to uphold the Constitution and laws of the State of Michigan, including Article I, § 28
of the Michigan Constitution.” R. 23, FAC, PageID 158 ¶ 67. She also enforces Michigan’s Elliot-
Larsen Civil Rights Act (ELCRA). And, according to Plaintiffs, § 28(2) mandates that the state,

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including the executive branch, protect and enforce the right enshrined in § 28, including against
medical professionals through the ELCRA.
Attorney General Dana Nessel. Plaintiffs allege that AG Nessel is the top lawyer for the
state of Michigan and that she provides legal counsel to the legislature and every executive
department in Michigan. Like Governor Whitmer, AG Nessel is charged with “enforcing and
upholding the Constitution and laws of the State of Michigan, including Article I, § 28 of the
Michigan Constitution.” Id. ¶ 70 AG Nessel also has authority to enforce the Michigan Consumer
Protection Act (MCPA), and the complaint alleges that “[§] 28 provides the mechanism and basis
for enforcing [the MCPA] against pro-life medical professionals . . . .” Id. at 172–73 ¶ 127.
Secretary of State Jocelyn Benson. Plaintiffs allege that Secretary Benson, as the Michigan
Secretary of State, “is responsible for enforcing and implementing the ballot initiative procedures
set forth in Article XII, § 2 of the Michigan Constitution.” Id. at PageID 159 ¶ 73. As part of
these responsibilities, they allege that Secretary Benson carried out the ballot initiative procedures
that resulted in the addition of § 28 to the Michigan Constitution.
This is the full extent of the allegations against Defendants. This is not enough. The
primary allegation against the Governor and the Attorney General is that each is generally
responsible for executing Michigan’s laws. This type of general allegation cannot support
Plaintiffs’ standing because a state official’s general authority to enforce state law cannot satisfy
traceability in the absence of “allegations about what the [official] has done, is doing, or might do
to injure plaintiffs.” Universal Life Church, 35 F.4th at 1031–32.
For the Governor and Attorney General, this leaves only the allegations claiming they have
enforcement responsibilities relating to the ELCRA and MCPA. But these allegations do not bear
on Plaintiffs’ parental rights theory because they allege only that the ELCRA and MCPA bear on

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enforcement as to medical professionals, rather than in a manner that would cause harm to parental
rights. See Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 256 (6th Cir. 2018).
Notably, the medical professional plaintiffs chose not to appeal. But even if we consider the
ELCRA and MCPA, Plaintiffs have not pointed to a single threatened or actual enforcement action
coming from the Governor or Attorney General. Plaintiffs needed to plead more. See Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 161–67 (2014); see also First Choice Women’s Res.
Centers, Inc. v. Davenport, 146 S. Ct. 1114, 1124–26 (2026) (holding that crisis pregnancy centers
had standing because the challenged subpoenas carried penalties for noncompliance and the
Attorney General had threatened additional charges).
The allegations against Secretary Benson fare no better. Plaintiffs do not allege that she
has any enforcement responsibility as it relates to § 28. So they have not pleaded adequate facts
to show that the alleged injury is traceable to her actions or that an injunction against her would
redress an alleged injury. Whole Woman’s Health v. Jackson, 595 U.S. 30, 43–45 (2021).
Plaintiffs make two additional arguments to support standing. We find neither persuasive.
First, they rely heavily on subsection (2) of § 28, which says that Michigan “shall not
discriminate in the protection or enforcement of this fundamental right.” R. 23, FAC, PageID 160
¶ 80. But this provision does not by itself show any particular actions that Defendants may take
to enforce the law. And this was Plaintiffs’ burden—to “direct this Court to [some] enforcement
authority [Defendants] possess[] . . . that a federal court might enjoin [them] from exercising.”
Whole Woman’s Health, 595 U.S. at 43. Such unexplained enforcement authority cannot support
standing.
Second, Plaintiffs argue that because § 28 has led to several abortion restrictions being held
unlawful, their harms directly flow from the constitutional amendment. But this does not mean

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the harms flow from Defendants. Federal courts exercising equitable power “may enjoin named
defendants from taking specified unlawful actions,” but they cannot “enjoin challenged laws
themselves . . . .” Id. at 44 (cleaned up). Plaintiffs’ lawsuit is against Defendants, not against the
law itself. And Plaintiffs do not explain how enjoining Defendants, who have no specified
enforcement authority, from enforcing a law that has no specified enforcement mechanism, will
redress their alleged injuries.
The complaint does not plead facts to support traceability or redressability, so Plaintiffs
lack Article III standing.
III.
We therefore AFFIRM the decision of the district court.

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