Michigan groups contest order blocking pro-life law

Pro-life organizations and county prosecuting attorneys in Michigan are fighting in court to protect a dormant, decades-old pro-life law in the state. On May 17, a state judge temporarily prevented enforcement of the law. Pro-lifers called the ruling legally illegitimate and said the judge should recuse herself from the case because of her personal ties to abortion groups.

The law, which dates to 1931 and protects all babies from abortion except to save the mother’s life, has not been in effect for decades because of the Supreme Court’s 1973 Roe v. Wade decision, which established a right to abortion in the United States. No Michigan officials are currently attempting to enforce the law. But that could change if the U.S. Supreme Court’s final ruling in the Dobbs v. Jackson Women’s Health case, expected this summer, overturns Roe.

Pro-lifers in Michigan expected the old law to make the state largely safe for unborn babies in a post-Roe future. But last week’s ruling in a lawsuit from Planned Parenthood places a question mark on the status of abortion law in the state in the coming weeks and months.

Planned Parenthood filed its lawsuit in April, the same day that Michigan Gov. Gretchen Whitmer sued 13 county prosecuting attorneys. Both lawsuits argue the 1931 law is unconstitutional because it safeguards babies from abortion, a procedure they claim the state constitution protects even though it does not mention abortion. The lawsuits aim to prod Michigan courts to declare a right to abortion in the state constitution.

In her opinion in the Planned Parenthood case, Judge Elizabeth L. Gleicher said the law likely violates the Michigan Constitution, but her concluding orders do not settle that constitutional claim. They order Michigan Attorney General Dana Nessel and “state and local officials acting under [her] supervision” not to enforce the law as litigation continues.

On Friday, Alliance Defending Freedom filed a complaint in the case on behalf of two state pro-life groups—Right to Life of Michigan and the Michigan Catholic Conference—and two of the 13 county prosecuting attorneys from the Whitmer case. According to the complaint, Nessel sent Michigan county prosecutors a copy of Gleicher’s order within hours of its release, telling them they could not enforce the 1931 pro-life law. But ADF’s complaint argues that Nessel “has no authority to dictate to county prosecutors how they exercise their prosecutorial discretion.”

ADF called on the Michigan Court of Appeals to take over the case and noted that a 1997 ruling declared the Michigan Constitution does not ensure a right to abortion.

ADF attorney John Bursch in a news conference last Tuesday called the decision “rogue,” referring to Gleicher as “ethically conflicted” and “lack[ing] jurisdiction to decide the case.”

In April, after receiving the assignment for the case, Gleicher disclosed in a letter distributed by a court clerk that she donates annually to Planned Parenthood and represented the abortion giant as a volunteer attorney for the American Civil Liberties Union. According to the letter, reported by The Detroit News, Gleicher did not believe those facts would compromise her “impartiality and objectivity” in the case. But ADF attorneys in an April 20 amicus brief disagreed, adding that Gleicher also received a Planned Parenthood Advocate award in 1998. (Gleicher, who issued her ruling in Michigan’s Court of Claims, is also chief judge of the state’s Court of Appeals.)

The amicus brief outlined another core issue in the case: a lack of actual controversy. According to ADF, if the court wants to take up a challenge to the law, it needs to wait until there’s an actual disagreement between parties and an actual injury that Planned Parenthood has faced as a result of officials enforcing the law.

Nessel herself has even said as much. According to The Detroit News, Nessel said in May, “I believe that the case should be dismissed for lack of jurisdiction because there’s no case or controversy.”

According to the ADF complaint, time for appealing Gleicher’s temporary order will run out on June 7. Nessel has said she will not appeal the ruling. With that timeline in mind, ADF urged the Court of Appeals to settle the issue quickly.

Whitmer has attempted to use her executive powers to fast-track her other lawsuit against prosecutors to the Michigan Supreme Court. That court has not yet agreed to take up the constitutional questions in the case, but on Friday it said it wouldconsider procedural questions and requested more information from Whitmer’s office.