Opinion | Why Michigan abortion law confusion will linger until November

If you're a physician who treats Michigan women seeking an abortion, the good news is that nobody is coming to arrest you.

Not yet, at least — and probably not before the end of this year, if ever.

Oh, there's plenty of uncertainty lurking between now and then, like the hearing this Wednesday in Oakland County, where Circuit Judge Jacob Cunningham could theoretically give prosecutors the green light to begin enforcing a 1931 law that makes abortion a felony in Michigan.

That's when a temporary restraining order that has so far barred county prosecutors in Michigan from enforcing the 1931 law expires. Cunningham issued the order on Aug. 1 at the request of Gov. Gretchen Whitmer, who is the plaintiff in one of two lawsuits asserting that the 91-year-old abortion ban violates Michigan's state constitution.

Two Republican prosecutors — Chris Becker of Kent County and Jerry Jarzynka of Jackson County — argue that Cunningham should give them the discretion to enforce the ban while Whitmer's lawsuit and a similar constitutional challenge filed by Planned Parenthood of Michigan work their way through the courts.

But Cunningham is more likely to issue a preliminary injunction that perpetuates the tense standoff between Republican legislators seeking to revive the ban and a Democratic governor fighting to overturn it.

So when will the legal status of abortion in Michigan be definitively resolved? And who will resolve it?

Probably not until at least the midterm elections scheduled for Nov. 8.

Planned Parenthood and other advocates of reproductive choice want voters to approve a constitutional amendment that guarantees a woman's right to end her pregnancy before viability and limits the restrictions legislators can place on women whose pregnancies are further along.

If the Board of State Canvassers agrees to put the proposed amendment on the November ballot and a majority of voters approve it, the constitutionality of the 1931 abortion ban will be moot, and Michigan will join the majority of states in which most abortions are legal.

Couldn't the courts address claims that the 1931 ban is unconstitutional before the election?

Yes — and the lower court judges presiding over the lawsuits filed by Planned Parenthood and Whitmer probably will.

Court of Claims Judge Elizabeth Gleicher, who is hearing Planned Parenthood's lawsuit, has already opined that Michigan's 1931 ban likely violates the state constitution. Gleicher made that determination — and issued a preliminary injunction barring the state attorney general's office from enforcing the ban — in May, more than a month before the U.S. Supreme Court vacated its landmark ruling in Roe v. Wade.

How soon could Gleicher make a final decision?

Planned Parenthood wants Gleicher to make a final ruling on the 1931 law's constitutionality without holding a jury trial. So do Republican legislative leaders, who were allowed to intervene in the case after Democratic Attorney General Dana Nessel, the nominal defendant in Planned Parenthood's lawsuit, declined to defend the law's constitutionality. Both sides agree there are no disputed issues of fact for a jury to resolve, and GOP lawmakers are impatient to elevate the case to a higher court.

Gleicher is widely expected to confirm her earlier assessment that the ban is unconstitutional, and issue a permanent injunction barring its enforcement, by the beginning of September.

How likely are appellate judges to reverse Judge Gleicher if she strikes down the 1931 ban?

That depends on which appellate judges are assigned to hear the appeal.

A litigant disappointed by the judgment of a trial court (like the Court of Claims, which hears lawsuits against the state, or the Oakland County Circuit Court, in which Whitmer filed her suit seeking to bar county prosecutors from enforcing the 1931 ban) normally files an appeal with the Michigan Court of Appeals.

All appeals are assigned to a panel of three judges chosen in a blind draw. There are 25 Court of Appeals judges in all, and because those appointed by Republican governors currently outnumber those appointed by Democratic governors, the odds that a randomly chosen panel would include a majority of conservative judges are better than even. A panel sympathetic to abortion opponents could revive the 1931 ban and lift any injunction barring its enforcement.

But won't the Michigan Supreme Court have the last word, whatever the Court of Appeals does?

Yes — and even if a conservative Court of Appeals panel decided the 1931 ban was immediately enforceable, the Democratic state Supreme Court majority would likely intervene to keep the status quo in place while justices consider the law's constitutionality.

Another possibility is that one or both sides in either lawsuit may ask state Supreme Court justices to bypass the Court of Appeals entirely, on the grounds that the state's highest court should resolve a question as critical as the future of abortion as quickly as possible.

If the state Supreme Court agrees to bypass the Court of Appeals, wouldn't justices have plenty of time to rule on the constitutionality of the 1931 statute before the November election?

Theoretically, yes — and abortion opponents seeking to revive the ban could argue that any delay would cause irreversible damage, allowing women to continue having abortions that would outlawed if the1931 law were enforced.

But justices who want to avoid ruling before the election will likely argue that little will be lost by preserving the status quo that has prevailed for half a century while they carefully consider the constitutional question.

The state Supreme Court is currently on recess until September, and justices have already accepted enough cases to fill their oral argument calendar through October. Unless a majority of justices agreed to expedite the abortion lawsuits, the court is unlikely to hear arguments in either case before November or December at the earliest.

Why might justices want to wait until after the election?

The court's Democratic majority has at least two motives: one practical, and one political.

Judges typically look to avoid wading into any contentious political dispute if legislators, or voters, can resolve it without their help. The pending referendum on the proposed Reproductive Freedom for All initiative gives the state Supreme Court an opportunity to stay on the sidelines for the rest of this election cycle.

The lawsuits filed by Whitmer and Planned Parenthood ask the courts to rule that the state constitution Michigan adopted in 1963, which includes no specific references to abortion or reproductive rights, nevertheless forbids legislators from criminalizing all abortions.

But the constitutional amendment voters will likely consider in November explicitly forbids the Legislature from barring abortions performed before the fetus is viable. A vote to add that language to Michigan's constitution would relieve state Supreme Court justices of any obligation to decide whether the more ambiguous guarantees in the current state constitution preclude an abortion ban.

What are the political incentives to avoid ruling before the election?

The fear that police and prosecutors might ultimately be allowed to enforce a 91-year-old statute that criminalizes abortion is expected to boost Democratic turnout in the November election. Besides improving prospects for passage of the proposed pro-choice amendment, a big Democratic turnout would be a boon for Whitmer and other pro-choice candidates, including the Democratic nominees for two state Supreme Court seats up for grabs in November.

A pre-election ruling that the language of the current state constitution already protects the right to abortion would diminish the sense of urgency many pro-choice voters feel now.

What if voters reject the proposed constitutional amendment? Wouldn't that suggest that most are OK with an abortion ban?

Abortion opponents would certainly make that argument. But the constitutionality of the 1931 ban is a separate issue. And voter rejection of the proposed amendment wouldn't preclude the state Supreme Court from ruling that any broad abortion ban violates guarantees of bodily autonomy implicit in Michigan's existing constitution.

But what if voters reject the constitutional amendment and elect a new Republican state Supreme Court majority?

Many political observers predict that any ruling on the constitutionality of the 1931 ban would break along party lines, with Democratic-nominated justices voting to strike down the ban and Republican-nominated justices voting to uphold it. If their forecast is right, an election giving Republican justices a 4-3 majority could be critical.

But no one knows for sure that the seven justices, who are nominally non-partisan officials, would vote in lockstep with the parties that nominated them. And no new justice elected in November will be sworn in until January. So the existing Democratic majority would have almost two months to rule on the lawsuits challenging the ban's constitutionality.

If all these calculations sound political, they are. But the judicial instinct to let the political process run its course before intervening in a polarizing controversy is a sound one.

Unless Republicans find a way to keep the proposed constitutional amendment off the ballot, voters will soon have the opportunity to preserve and improve the abortion access Michigan women have enjoyed for nearly half a century. That's the best way to resolve the abortion issue once and for all, even if it means that Michigan women and their physicians must endure another three months of anxiety and uncertainty.

This article originally appeared on Detroit Free Press: Michigan abortion law confusion will linger until November: Opinion