What loss of Roe means for women who want abortions in Michigan

Beth LeBlanc
The Detroit News

Abortions continue to be legal in Michigan despite a 6-3 U.S. Supreme Court decision on Friday that overturned the landmark 1973 Roe v. Wade decision enshrining abortion rights in the U.S. Constitution. 

A Michigan judge's May ruling halting enforcement of the state's more than century-old abortion ban means the law banning abortions will not take full effect for the time being. 

Court of Claims Judge Elizabeth Gleicher's May preliminary injunction is being challenged by the Michigan House and Senate and by Right to Life of Michigan,  the Michigan Catholic Conference and two county prosecutors in the state Court of Appeals. As of Friday, no decisions had been made on Right to Life and Michigan Catholic Conference's appeal. 

Gleicher's May opinion found that Planned Parenthood of Michigan, which filed the lawsuit, was likely to succeed on arguments that "forced pregnancy" is a threat to a woman's constitutional right to bodily integrity and due process. 

"Forced pregnancy, and the concomitant compulsion to endure the medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions," the judge wrote. 

"If a woman's right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth."

The law enjoined by Gleicher has been on the books in Michigan since the 1840s but was most recently updated in 1931. The law bans all abortions with an exception for the life of the mother, but it has been largely dormant since the 1973 Roe decision. If not for Gleicher's decision, it would have been fully enforceable Friday following the U.S. Supreme Court decision.

On Friday, Michigan Attorney General Dana Nessel urged the state's residents not to rely on the preliminary injunction or an eventual decision by the Michigan Supreme Court, noting the ease with which precedent was overturned at the federal level. She encouraged individuals to sign a wide-ranging ballot initiative enshrining in the state constitution a right to abortion.

"This (injunction) involves the enforcement of this 1931 felony statute," Nessel said. "It doesn't say anything about whether an insurance carrier can drop you or not. It doesn't say anything about whether you can maintain your license to practice medicine. It's only about whether or not you can get charged with this four-year felony offense."

Northland Family Planning Centers executive Lara Chelian shows an ultrasound room at one of the centers, which provides abortions. Abortions remain legal in Michigan despite a U.S. Supreme Court decision overturning Roe v. Wade.

Injunction challenge

The Michigan Catholic Conference and Right to Life of Michigan's appeal in the state Court of Appeals is challenging the reach of Gleicher's injunction.

Kent County Prosecutor Christopher Becker and Jackson County Prosecutor Jared Jarzynka are arguing with the groups in the Court of Appeals that Gleicher's opinion improperly seeks to enjoin county prosecutors through Nessel, the main defendant in the case, even though Nessel herself has said she has no authority over county prosecutors

The prosecutors' filing also challenges Gleicher's decision on the grounds that there was no case or controversy to serve as the basis for the Planned Parenthood lawsuit, and it argues that Gleicher's past role as lawyer for Planned Parenthood and her continued donations to the group should have barred her from hearing the case.

On Tuesday, Jarzynka renewed a request to the Court of Appeals seeking immediate consideration of his filing and that the court take superintending control of Gleicher's case and overturn her preliminary injunction. An answer to his request is set for Tuesday. 

On Friday, Dave Kallman, Jarzynka and Becker's lawyer, argued his clients still could enforce the law if they were given a case that met the elements of the 1931 ban. 

"If I were a doctor and I’m in Kent County or Jackson County or any county with pro-life prosecutors, I wouldn’t be performing abortions," Kallman said.

Gleicher's May opinion was issued in a case brought by Planned Parenthood of Michigan against Nessel, who said she would neither prosecute individuals under the 1931 ban nor defend it against Planned Parenthood's lawsuit. 

Planned Parenthood of Michigan on Friday pushed back on Kallman's claims, arguing Gleicher's ruling clearly enjoined prosecutors across the state.

"The preliminary injunction issued by the Court of Claims applies to all county prosecutors throughout the state of Michigan and a prosecutor who violates it risks being held in contempt of court," said Mark Brewer, one of the lawyers for Planned Parenthood.

Nessel said Friday she wouldn't be surprised if anti-abortion prosecutors began to enforce the law on the premise that Gleicher's opinion didn't apply to them because they weren't defendants in the case. 

"The theory I believe espoused by the court is that even though I was the named defendant in that lawsuit, that it applied equally to all prosecutions in the state," Nessel said. "But then again, that's something I think that would have to be expounded on, perhaps by the court. And I'm not going to take a position on that."

Legislature steps in

In early June, the Republican-led Michigan Legislature filed to intervene as a defendant in the Planned Parenthood case. An early House budget proposal includes about $750,000 to "legally defend the constitutionality of state laws," including the state's abortion ban. 

Gleicher granted the motion to intervene but denied the Legislature's request to reconsider her preliminary injunction, noting the court "detects no palpable error" in her original opinion.

Last week, the Michigan Legislature filed opposition in court to an order expediting proceedings in the Planned Parenthood case, arguing it was "procedurally improper" because the Legislature never agreed to the expedited plan.  

The expedited schedule proposed by Planned Parenthood would require the filing, responses and replies to a motion seeking a permanent injunction or a final court ruling in their favor to be complete by July 20. The Legislature pushed back against that deadline.

"There are three other cases related to this matter pending before the circuit court, the court of appeals and the Michigan Supreme Court," the Legislature said in its June 16 filing. 

"It would be imprudent to expedite this case without considering the schedule in those other cases."

Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Jason Wentworth, R-Farwell, had markedly different responses to Friday's U.S. Supreme Court decision. 

Wentworth, through a spokesman, briefly said he was "reviewing the ruling and how it may impact Michigan law."

Shirkey celebrated the ruling as a victory for those "who believe in the precious miracle of life" and as an affirmation of the "importance of federalism and states' rights." But the Senate majority leader acknowledged the divisiveness of the issue.

“Despite our strongly held differences on this very personal issue, I believe there is common ground to be found in celebrating life, supporting moms and dads, elevating families, and ensuring every child has a loving home," Shirkey said in the statement. "I hope the governor, attorney general and my colleagues in the Senate join us in this effort rather than stoking emotions and fears to further divide our nation and state.”

Other suits, other efforts

In addition to the Planned Parenthood case, Gov. Gretchen Whitmer also filed suit in April in Oakland County Circuit Court against 13 county prosecutors tasked with enforcing the law in their counties. Like Planned Parenthood, Whitmer asked the judge to find a constitutional right to abortion that trumps the state abortion ban. 

The Democratic governor also sent an executive message to the Michigan Supreme Court, asking the high court to take the case immediately instead of allowing the issue to work its way through the lower courts. 

The high court asked for supplemental briefings but has not officially said whether it would take up the case. 

Whitmer doubled down on her request Friday, against asking the Supreme Court to immediately consider her case in light of the Roe decision. 

In addition to the two lawsuits, the Reproductive Freedom for All ballot committee is collecting signatures to enshrine wide-ranging rights to abortion and other reproductive services in the Michigan Constitution. The group is required to submit 425,059 valid signatures by July 11 in a bid to put the proposed constitutional amendment before voters on the Nov. 8 ballot. 

In the Legislature, Democratic lawmakers have introduced the Michigan Reproductive Health Act, which contains similar statutory language to the ballot initiative, and bills seeking to repeal the state's abortion ban. Neither bill has received a hearing.

On Wednesday, Rep. Steve Carra, R-Three Rivers, introduced the Protection at Conception Act on the assumption that the Legislature's defense of the 1931 law "will most likely result in a defeat for the pro-life movement."

Carra's bill, which would punish abortion providers with up to 10 years in prison, is unlikely to get Whitmer's signature if it is passed.