Planned Parenthood's effort to overturn Michigan's abortion ban challenged

Mike Martindale
The Detroit News

Lansing — Right To Life of Michigan and Michigan Catholic Conference are opposing Planned Parenthood's recent challenge of Michigan's 1931 ban on abortion in a legal brief filed Wednesday.

Amicus briefs filed by the Alliance Defending Freedom legal group seek the dismissal of Planned Parenthood's complaint, which the alliance said violates state law, said ADF senior counsel John Bursch in a Wednesday news release.

“Michigan’s elected officials have a duty to uphold the law and protect all their citizens, including the innocent lives of unborn children,” said Bursch, a former Michigan solicitor general under Republican ex-Attorney General Bill Schuette said. “Yet what we are seeing is the state’s top attorney general engaged in an unacceptable effort to attack a pro-life law that has existed peaceably with the state constitution for more than half a century."

Planned Parenthood's suit was filed in the Michigan Court of Claims, almost in tandem with a similar suit by Gov. Gretchen Whitmer filed in Oakland County Circuit Court against 13 county prosecutors who may be called on to enforce the 1931 law in counties where abortion clinics are present.

Both suits challenge Michigan's nine-decade ban on abortion in anticipation that the U.S. Supreme Court will potentially overturn by the end of June the landmark Roe v. Wade decision that enshrined abortion as a constitutional right. 

Whitmer is using her executive authority to seek immediate intervention from the Michigan Supreme Court. 

Attorney General Dana Nessel, a Democrat, has said she would not enforce the 1931 law should Roe v. Wade be overturned, but county prosecutors also have the authority to bring charges under the law.

“We urge the court to swiftly dismiss this case because it not only lacks jurisdiction — both sides of the case are arguing for the exact same outcome — but also because it is based on a hypothetical situation,” Bursch said. “No matter how someone feels about abortion, they should be gravely concerned that Michigan’s attorney general refuses to defend a validly enacted and longstanding law.”

Bursch's brief said the presiding Court of Claims judge in the Planned Parenthood lawsuit, Elizabeth Gleicher, should recuse herself because this case was brought by Planned Parenthood, represented by the American Civil Liberties Union. 

Gleicher, a 2007 appointee of Democratic former Gov. Jennifer Granholm, previously worked as an ACLU attorney and litigated cases on behalf of Planned Parenthood. Gleicher, who is chief judge of the Michigan Court of Appeals, remains an annual donor to Planned Parenthood, attorneys involved in the case were told in a letter from the court last week.

"Right to Life and the Michigan Catholic Conference are also deeply concerned that this case has been assigned to a Michigan Court of Claims judge who has not yet recused but previously, in private practice, represented parties in litigation to invalidate Michigan pro-life laws while working with Plaintiffs’ counsel, the ACLU; who has received an award from Planned Parenthood; and who remains an annual and longtime contributor to Plaintiff Planned Parenthood," Bursch wrote in his brief.

"Remarkably, this will result in a judge indirectly funding the very action over which she presides."

Michigan Court of Appeals Judge Elizabeth L. Gleicher

The letter to attorneys in the case from the clerk of the court said Gleicher was randomly assigned to the case.

"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," according to the Thursday letter. "If any party disagrees with Judge Gleicher's assessment, an appropriate motion may be filed."

Nessel's office said it had no reason to believe Gleicher couldn't be impartial. 

Campaign finance records indicate Gleicher is a frequent contributor to state Democratic candidates and causes, including the Michigan Democratic State Central Committee, Emily's List and defendant Nessel in March 2021, when she gave $1,000 to Friends of Dana Nessel. 

The Michigan code for judicial conduct allows judges to make contributions to a political party but prohibits endorsements of any one candidate. Gleicher's giving doesn't appear to be unusual among state judges.

The Whitmer and Planned Parenthood lawsuits were filed earlier this month

In a statement earlier this month, seven of the county prosecutors named in Whitmer's suit — all Democrats — said they supported the governor in her effort and would not enforce Michigan's 1931 law should Roe v. Wade be overturned. 

"Those archaic statutes are unconstitutionally and dangerously vague, leaving open the potential for criminalizing doctors, nurses, anesthetists, health care providers, office receptionists — virtually anyone who either performs or assists in performing these medical procedures," the letter said from Wayne County Prosecutor Kym Worthy, Oakland County Prosecutor Karen McDonald, Ingham County Prosecutor Carol Siemon, Washtenaw County Prosecutor Eli Savit, Genesee County Prosecutor David Leyton, Marquette County Prosecutor Matthew Wiese and Kalamazoo County Prosecutor Jeffrey Getting. 

Michigan's 1931 ban on abortion criminalizes the act of providing an abortion but has essentially lain dormant since Roe v. Wade was decided. The ban would be enforceable should the 1973 decision be overturned.

Whitmer has repeatedly said she wants to see the Legislature repeal the state's law. Democrats have introduced bills to repeal the 1931 law, but the state's Republican-controlled Legislature opposes them and has taken no action.

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Staff Writer Beth LeBlanc contributed.