A Michigan Court of Claims judge has granted a preliminary injunction to Planned Parenthood of Michigan that would block enforcement of Michigan’s 1931 abortion ban if the U.S. Supreme Court overturns the landmark decision in 1973 Roe enshrining abortion as a constitutional right.
Claims Court judge Elizabeth Gleicher delivered a preliminary victory to Planned Parenthood of Michigan which would block enforcement of Michigan’s 1931 abortion ban if the US Supreme Court overturns the landmark 1973 Roe decision enshrining abortion as a constitutional right.
Democratic Attorney General Dana Nessel said she would not appeal Gleicher’s order. Nessel, the named defendant in the case, said the ruling against her office is a “victory for the millions of women in Michigan fighting for their rights.”
Gleicher granted the preliminary injunction in an order finding that Planned Parenthood was likely to succeed based on arguments that “forced pregnancy” is a threat to a woman’s constitutional right to bodily integrity and a regular procedure.
“Forced pregnancy and the concomitant coercion to bear the medical and psychological risks that accompany it violate the right to make autonomous medical decisions,” Gleicher wrote.
“For a woman’s right to bodily integrity to have real meaning, it must include her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth. .”
Planned Parenthood filed a lawsuit against Nessel in April, asking the court to find an abortion right in Michigan’s constitution that would override the ban first established in 1846 and re-enacted in 1931. The ban is dormant after the 1973 Roe decision.
The family planning lawsuit was filed April 4, the same day Michigan Governor Gretchen Whitmer filed a similar challenge in Oakland County Circuit Court against 13 county prosecutors who would be charged with enforcing banning abortion clinics in their counties. Whitmer accompanied her filing with an executive message to the Michigan Supreme Court asking the High Court to consider the case immediately instead of waiting for it to be appealed to the justices.
Alliance Defending Freedom, a group intervening in the lawsuit on behalf of Right to Life and the Michigan Catholic Conference, criticized the decision given the absence of a party injured by the 1931 Act and Gleicher’s relationship with Planned Parenthood of Michigan.
“Today’s decision is absolutely egregious,” said John Bursch, former state solicitor general and attorney for Alliance Defending Freedom. “Because defendant Attorney General Dana Nessel was not defending the law, the court lacked jurisdiction.”
Bursch said the group is exploring its legal options, which include pursuing appellate review from “a rogue appeals court judge.”
Whitmer hailed the decision in a statement Tuesday as a “significant win for the Michiganders.”
“While today’s preliminary injunction offers immediate and critical relief, we need the Michigan Supreme Court to step in and establish the right to abortion under our state constitution,” Whitmer said. . “We must protect the rights of Michigan’s nearly 2.2 million women to make decisions about their bodies because, regardless of our personal views on abortion, a woman’s health, not politics, should lead to important medical decisions.”
The lawsuit was criticized by abortion advocates because it was filed against what they called a friendly party because Nessel said neither she nor anyone in her office would defend the state law .
Additionally, Gleicher revealed early in the case that she was a regular donor to Planned Parenthood of Michigan and represented the group in a key case challenging the constitutionality of the law.
On Tuesday, Nessel praised the judge for moving quickly “to preserve this important right.”
“I have no intention of appealing and will comply with the order to notify all state and local officials under my supervision,” Nessel said, referring to part of the order requiring him to notify state and local officials of the injunction.
Nessel’s praise came after the attorney general said earlier this month that the case should be dismissed because there were no opposing parties or a case or controversy on which the case could be. founded.
Gleicher disagreed and said such an argument would destroy “a plaintiff’s ability to obtain a meaningful judicial decision with real effect.”
“On the defendant’s case, in all cases challenging the constitutionality of a statute, the Attorney General would be empowered to derail a constitutional challenge simply by communicating non-specific consonance with the plaintiff’s position,” Gleicher wrote.
“…the Attorney General’s reluctance to stipulate a preliminary injunction or other relief creates adversity in this case.”
The judge argued that the 1997 Court of Appeals decision in the Mahaffey case — where she served as a Planned Parenthood counselor — established that Michigan’s Constitutional right to privacy does not include the right to abortion.
But, she noted, Planned Parenthood in 2022 does not invoke abortion protections under the right to privacy; instead, he says the right to an abortion resides in the Michigan Constitution’s right to bodily integrity and due process, which were not decided in the Mahaffey case.
“Pregnancy involves bodily integrity because even for the healthiest women it carries significant medical risks…so the link between the right to bodily integrity and the decision to bear a child is clear,” Gleicher wrote.
Bursch challenged not only Nessel’s position on the issue and Gleicher’s relationship with Planned Parenthood, but also the ability to remove a right from the Michigan Constitution that hadn’t existed for decades.
“Somehow that right lurked beneath the surface for nearly half a century until Judge Gleicher, the former lawyer for Planned Parenthood, mysteriously found one.” , did he declare.