High court to Whitmer: Clarify need for a speedy review of Michigan abortion law

Beth LeBlanc
The Detroit News

Lansing — The Michigan Supreme Court has asked Gov. Gretchen Whitmer to provide more information on why the justices should bypass a lower court and immediately consider her arguments challenging the constitutionality of the state's dormant abortion law. 

The justices sent a series of five largely procedural questions in a Friday order to determine if Whitmer's arguments are ripe for consideration by the high court. 

The order from the Michigan Supreme Court came a few days after a Court of Claims judge issued a preliminary injunction in a separate case from Planned Parenthood, putting a pause on enforcement Michigan's long-dormant abortion ban should the 1973 Roe decision be overturned by the U.S. Supreme Court. 

In the Friday order, the justices asked the governor to clarify whether the preliminary injunction in the Planned Parenthood case earlier this week eliminates the need for immediate consideration from the Michigan Supreme Court or whether an actual case or controversy is needed for the high court to consider the issue.

In addition, they asked Whitmer's team to elaborate on the circumstances allowing for the high court to take up an issue in response to a governor's executive message and whether the governor is limited under executive message rules to questions in defense of a law "rather than calling them into question." Finally, the justices asked  whether it was appropriate for the state high court to weigh in on the issue before a U.S. Supreme Court decision on Roe. 

Whitmer's office said Friday it's never been more important for the high court to weigh in on the question of the constitutionality of the state's abortion ban so clarity can be provided to women across Michigan. 

"We are reviewing the Michigan Supreme Court's questions and welcome the opportunity to inform the court of the need to resolve this crucial constitutional question now," said Bobby Leddy, a spokesman for Whitmer's office.

When Whitmer filed her lawsuit in Oakland County Circuit Court in early April, she also sent what's called an "executive message" to the Michigan Supreme Court asking justices to consider her challenge to the state's 1931 abortion ban prior to litigating the issue in circuit court. 

Planned Parenthood filed a similar suit the same day in the Court of Claims and on Tuesday received a preliminary injunction, halting enforcement of the law during litigation. 

Both Whitmer and Planned Parenthood filed their cases in anticipation that the U.S. Supreme Court will overturn the 1973 Roe decision that established abortion as a constitutional right. A draft opinion leaked this month indicated the nation's highest court would. 

Whitmer has two weeks to respond to the high court's request. After her response, other parties in the case — such as the county prosecutors being sued and anti-abortion groups weighing in on the issue — will be able to respond to Whitmer's answers.