LANSING, Mich. (AP/WOOD) — A Michigan Court of Claims judge has put a hold on the state’s 1931 abortion ban, meaning it would not be enforced in the event that Roe v. Wade is overturned by the U.S. Supreme Court.
In a Tuesday order, Judge Elizabeth Gleicher granted a preliminary injunction ordering the Michigan Attorney General’s Office, named as the defendant in a suit by Planned Parenthood of Michigan, not to enforce the ban.
Gleicher said there is a “strong likelihood” that plaintiff Planned Parenthood will succeed in its challenge of the 1931 law, which makes performing an abortion a felony in Michigan but which has been no practical effect since the 1973 Roe V. Wade ruling. Planned Parenthood had argued that it was unconstitutional.
“After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy,” the judge said.
“From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment,” Gleicher said.
The judge added that if the U.S. Supreme Court overturns Roe v. Wade — which a draft document leaked earlier this month indicated may happen — Planned Parenthood and its clients “face a serious danger of irreparable harm.”
“The balancing of hardships strongly weighs in plaintiff’s favor,” she said. “Maintenance of the status quo will not harm the Attorney General.”
Gleicher said other Michigan laws regulating abortion will remain in full effect.
The injunction is preliminary only and does not act as a final ruling. The parties must to tell the court within the next 30 days whether a trial should be scheduled.
The lawsuit by Planned Parenthood, which performs abortions, is one of two legal challenges in the state. Whitmer, who supports abortion rights, has asked the Michigan Supreme Court to bypass lower courts and declare the 91-year-old law unconstitutional.
The court clerk said the Planned Parenthood case was randomly assigned to Gleicher using a case management system algorithm. When that happened, she notified all parties that she donates to Planned Parenthood annually and that she was a volunteer attorney for Planned Parenthood while working for the ACLU in 1996 and 1997.
“While Judge Gleicher does not believe this warrants her recusal, and is certain that she can sit on this case with requisite impartiality and objectivity, she believes that this letter of disclosure is appropriate,” the clerk wrote in a letter to counsel (PDF) dated April 14.
No attorneys objected to Gleicher hearing the case.
The attorney general’s office typically defends against challenges to Michigan laws. But Attorney General Dana Nessel, a Democrat, said she would not defend or enforce the abortion ban. She, too, believes it is unconstitutional and welcomed the injunction.
“This injunction is a victory for the millions of Michigan women fighting for their rights. The judge acted quickly in the interest of bodily integrity and personal freedom to preserve this important right and found a likelihood of success in the state law being found unconstitutional. I have no plans to appeal and will comply with the order to provide notice to all state and local officials under my supervision.”Michigan Attorney General Dana Nessel
Instead, Right to Life of Michigan and the Michigan Catholic Conference stepped in to oppose Planned Parenthood.
Planned Parenthood of Michigan celebrated the ruling Tuesday.
“The Michigan Court of Claims just granted our request for a preliminary injunction against Michigan’s 1931 criminal abortion ban. This means abortion access is protected in Michigan while our full case against the outdated and unconstitutional law proceeds,” Planned Parenthood of Michigan tweeted. “This is a victory for reproductive freedom in Michigan, and we will not stop until this dangerous law is blocked once and for all! #BansOffOurBodies”
Gov. Gretchen Whitmer, a Democrat, called the decision a victory.
It “sends the message that Michigan’s 1931 law banning abortion, even in cases of rape or incest, should not go into effect even if Roe is overturned,” Whitmer said. “It will help ensure that Michigan remains a place where women have freedom and control over their own bodies.”
Brendan Beery, a professor with Cooley Law School, said the Michigan court rulings would set a framework for abortion laws in the state if Roe v. Wade is overturned.
“Once Michigan does have legislation, I do think that’s important, that they need some kind of framework, then the question becomes is the law that they passed is consistent with the Michigan Constitution, so these things always wind up at the highest court in the state one way or another,” Beery said.
Leah Litman, an assistant professor with the University of Michigan Law School, said the future of abortion in Michigan would depend on future state laws, whether prosecutors would enforce a ban and if voters choose to amend the state constitution to protect abortion.
“Planned Parenthood’s argument and the argument that the Court of Claims adopted is that the criminal abortion ban violates the state constitution because the state constitution protects the right to bodily integrity,” Litman said. “Because it forces an individual to undergo the physical hardship of pregnancy when they don’t want to.”
Michelle Richards, an associate professor of law at the University of Detroit Mercy, said a ruling in favor of Planned Parenthood would prevent any future attorney general from enforcing the 1931 ban.
“Even if Dana Nessel retains her seat or she loses the election and someone else replaces her, there’s a risk of prosecution and so the underlying litigation is asking a declaratory opinion, or judgement,” Nessel said.
—News 8’s Anna Skog and Kyle Mitchell contributed to this report.