Michigan Court of Claims judge grants injunction against 1931 abortion law

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LANSING – A Michigan Court of Claims judge on Tuesday issued a preliminary injunction against Michigan's 1931 abortion law, finding Planned Parenthood is likely to prevail in a lawsuit saying the law violates the state constitution.

Judge Elizabeth Gleicher granted the injunction sought by Planned Parenthood of Michigan in a lawsuit brought against the state attorney general.

"As of the date this opinion is issued, it is unknown whether the U.S. Supreme Court will overturn Roe v. Wade," leaving the 1931 state law, which bans abortions except to save the life of the mother, the law in Michigan, Gleicher wrote.

The U.S. Supreme Court is expected to rule any day in a Mississippi case that may overturn nearly 50 years of abortion precedent. A leaked copy of a draft opinion in the case indicated a majority of justices were prepared to overturn Roe, in effect ending the national constitutional right to an abortion and leaving the legality of abortions up to each state.

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A Michigan law from 1931 includes two key components: one makes any abortion a felony unless it is done to protect the life of the pregnant person. The second also criminalizes selling or advertising medications that could induce an abortion.

Under Tuesday's ruling, the state could not enforce the 1931 law should Roe v. Wade be struck down.

The 1931 law "criminalizes virtually all abortions, and if enforced, will abruptly and completely end the availability of abortion services in Michigan," Gleicher wrote.

"A preliminary injunction furthers the public interest, allowing the court to make a full ruling on the merits of the case without subjecting plaintiff and their patients to the impact of a total ban on abortion services in the state."

Gleicher found that abortion rights are almost certainly protected under due process provisions in the Michigan Constitution that protect bodily integrity.

"After 50 years of legal abortion in Michigan, there can be no doubt 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," Gleicher wrote.

Dr. Sarah Wallett, the chief medical officer for Planned Parenthood of Michigan, championed the decision.

“This is a win for individuals, families, and communities. For those of us who provide abortions, it means we can continue to provide essential health care for our patients," she said in a statement.

"Today’s ruling means all Michiganders will continue to be able to access the health care they deserve and to be able to decide for themselves their own futures.”

In a statement, Michigan Attorney General Dana Nessel agreed the ruling is a victory and promised not to appeal the decision.

"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," Nessel said.

"I have no plans to appeal and will comply with the order to provide notice to all state and local officials under my supervision.”

But in court filings, Nessel said while she agrees the 1931 law is unconstitutional, there was a "lack of adversity" and no jurisdiction for the Michigan Court of Claims because she has no intention of enforcing the 1931 law.

Planned Parenthood argued Nessel's personal views are irrelevant since the person holding the office of attorney general is subject to change.

Gov. Gretchen Whitmer also heralded the decision, calling it a victory for Michiganders. But she cautioned supporters of abortion rights have more work to do, touting her own lawsuit that asks the Michigan Supreme Court to determine the state Constitution includes a right to an abortion.

"While today’s preliminary injunction offers immediate, critical relief, we need the Michigan Supreme Court to weigh in and establish the right to abortion under our state constitution," Whitmer said.

"We must protect the rights of nearly 2.2 million women in Michigan to make decisions about their bodies because, however we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions.”

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There are 27 abortion providers in Michigan situated in 13 counties: Emmet, Genesee, Grand Traverse, Ingham, Jackson, Kalamazoo, Kent, Macomb, Marquette, Oakland, Saginaw, Washtenaw and Wayne. Almost 30,000 abortions were performed in 2020, according to the state health department.

The American Civil Liberties Union (ACLU) of Michigan represents Planned Parenthood in the case. Bonsitu Kitaba, assistant legal director with the ACLU of Michigan, previously called this outcome the best-case scenario for her clients and Michigan.

She said an injunction prevents confusion overturning Roe could cause, and also gives abortion rights advocates time to work on getting enough signatures to put a proposed constitutional change on the ballot. That effort seeks to include express language in the state Constitution indicating abortions are protected.

More: Michigan advocates create petition to add abortion rights in state constitution

"Hopefully, in November, voters will decide to firmly make these rights part of the state Constitution, so that we don't really have to see the devastating consequences that could potentially come out from these laws going back into effect," Kitaba said.

Genevieve Marnon, a spokeswoman for Right to Life of Michigan, which is not a party to the lawsuit, said the group wants to study the court opinion before commenting.

The ruling appears to seek to bar county prosecutors from enforcing the law as well, instructing Nessel to tell all state and local officials under her supervision about the injunction. But county prosecutors are not defendants in the case, and it is not clear they are under Nessel's supervision and control.

While Nessel and seven prosecutors in some of the state's largest counties have vowed not to enforce the 1931 ban, some local prosecutors previously promised to enforce the law.

That includes Macomb County Prosecutor Pete Lucido, a former Republican state senator, who recently criticized other local prosecutors who publicly said they would not charge anyone with violating the law if Roe v. Wade is overturned.

"You've got discretion in the type of charges you can bring or the counts that you're bringing, but as far as the laws of the state made by lawmakers, those are on the books for a reason," Lucido told the Free Press before the court's ruling.

"It doesn't matter what the moral argument is. Either we have laws that we're going to enforce or we don't need lawmakers."

Gleicher, who was appointed by former Gov. Jennifer Granholm in 2007 and has donated to Planned Parenthood, previously represented Planned Parenthood in the 1990s on a key state abortion case. As a volunteer lawyer with the ACLU, Gleicher was one of the lawyers that represented the organization in a case called Mahaffey v. Attorney General.

In that case, the Michigan Court of Appeals determined the "Michigan Constitution does not guarantee a right to abortion that is separate and distinct from the federal right." After she disclosed this information, the Michigan Republican Party called on her to remove herself from the case, but she declined.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4. Read more on Michigan politics and sign up for our elections newsletter.

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This article originally appeared on Detroit Free Press: Michigan judge issues injunction against 1931 abortion law