(Source: MIRS.news, Published Wed., Sept. 7, 2022) Michigan's abortion-ban law has been ruled unconstitutional by a Court of Claims judge who has donated to Planned Parenthood, the plaintiff in the lawsuit.
Court of Claims Judge Elizabeth Gleicher held Wednesday that MCL 750.14 -- the 1931 law that bans abortion except to save the life of a mother -- violates the due process and equal protection clauses of the Michigan Constitution. It's the first time a Michigan judge ruled on the constitutionality of the law, but it likely isn't the end as opponents undoubtedly will appeal.
The statute, she noted, "is facially unconstitutional because its enforcement would deprive pregnant women of their right to bodily integrity and autonomy, and the equal protection of the law. …
"Enforcement of MCL 750.14 will endanger the health and lives of women seeking to exercise their constitutional right to abortion," Gleicher added. "Enforcement also threatens pregnant women with irreparable injury because without the availability of abortion services, women will be denied appropriate, safe and constitutionally protected medical care."
The plaintiffs, Attorney General Dana Nessel and Gov. Gretchen Whitmer, the latter of whom filed a separate lawsuit challenging the same law, praised today's ruling.
Dr. Sarah Wallett, chief medical operating officer at Planned Parenthood, said the ruling will ensure Michigan citizens can "continue to make deeply personal decisions about their health, lives and futures without interference from state officials."
Deputy Legal Director Bonsitu Kitaba with the ACLU of Michigan called it a "monumental victory."
"However, this decision is likely to be challenged, and we know that there’s a group of extremists who will stop at nothing to ban abortion even in cases of rape and incest," Whitmer said. "With our rights still hanging by a thread, the Michigan Supreme Court needs to provide certainty and rule on my lawsuit to protect the right to abortion in the state constitution. I will keep using every tool in my toolbox to protect women, nurses, and doctors here in Michigan."
The opinion closes Planned Parenthood of Michigan's lawsuit against Nessel, who is the only named defendant on the case.
The Michigan Court of Appeals earlier held that county prosecutors were not bound by Gleicher's earlier ruling granting a temporary injunction against enforcing the statute because they were not parties to the lawsuit. That led an Oakland County judge presiding over Whitmer's lawsuit to enter an order blocking enforcement..
Gleicher today said the appeals court's decision triggered "legal uncertainty" and that her ruling "does not conflict" with that court's ruling. She also noted she is not bound by the appeals court's nonprecedential order.
"Moreover, published case law and statutory authority call in to question the accuracy of the dicta within the Court of Appeals' order," Gleicher wrote.
As a result, Gleicher, who sits on the Court of Appeals, clarified today that the AG shall "personally serve a copy" of her order and opinion to "every county prosecuting attorney in the State of Michigan and must advise the county prosecuting attorneys" that the statute is unconstitutional because that is consistent with her duties to "advise" prosecuting attorneys.
Gleicher also quoted MCL 14.101, which provides the AG the power to intervene in any action commenced by a prosecutor that she believes to be beyond their legal authority.
Opponents have repeatedly blasted Gleicher for her initial injunction, arguing bias due to her donations to Planned Parenthood and her representing them during her practicing attorney years. (See "Prosecutors, Pro-Lifers Ask Appeals Court To Take Over Abortion Case," 5/23/22).
Gleicher declined to remove herself from the case, however, saying she could be impartial.
Meanwhile, Whitmer's executive message challenging the law remains pending in the Supreme Court.
Voters, however, might get a chance to decide whether or not to inscribe the right to abortion into the state Constitution if the Supreme Court orders the question onto the November ballot.
