Whitmer again asks Michigan Supreme Court to end 'confusion' over state abortion ban

Beth LeBlanc
The Detroit News

Lansing — Gov. Gretchen Whitmer made a third appeal Monday to the Michigan Supreme Court to immediately consider her lawsuit challenging the state abortion ban, asking the high court to rule definitively on the constitutionality of the law. 

The Democratic governor told justices that the Friday U.S. Supreme Court decision overturning Roe led to almost immediate "uncertainty, confusion and efforts to contract abortion access in Michigan," despite a preliminary injunction stopping enforcement of the law in the state Court of Claims. 

"...Certain county prosecutors and health providers have expressed confusion about the current legal status of abortion in Michigan," Whitmer said in a statement Monday. "This only underscores the need for the Michigan Supreme Court to act now, which is why I sent a notice to the court urging them to immediately take up my lawsuit and decide if access to abortion is protected under the Michigan Constitution."

The high court, which has a 4-3 majority of Democrat-nominated justices, has not indicated since April 7 whether it would take up the Democratic governor's request. 

Whitmer's latest plea came a few hours ahead of a Michigan Court of Appeals order denying immediate consideration of an appeal seeking to undo the preliminary injunction. Instead, parties will have until July 5 to submit all of their filings in the case.

In her Monday filing, Whitmer pointed to policy changes at the 22-hospital health system for Beaumont and Spectrum hospitals as proof of confusion over state law.

BHSH System, Michigan's largest hospital system, on Friday told employees it would follow the state's 1931 abortion ban and only allow pregnancy terminations "when necessary to preserve the life of the woman," only to clarify Saturday that it would still perform abortions "when medically necessary."

After the policy confusion, BHSH System asked the courts to clarify the status of the state abortion ban which is currently blocked from enforcement by a preliminary injunction. 

Monday's filing marked Whitmer's third appeal to the high court to take up her case that was initially filed in Oakland County Circuit Court against 13 county prosecutors tasked with enforcing the state abortion ban.

When she filed the suit in April, Whitmer sent an executive message to the Michigan Supreme Court asking justices to review the case immediately instead of allowing it to be decided and appealed first through the lower courts. 

She renewed that request Friday after the U.S. Supreme Court decision and on Monday after some confusion was expressed over the effect of the preliminary injunction. 

Seven Democratic county prosecutors who make up a majority of the 13 prosecutors being sued by Whitmer also asked the court in a Saturday filing to act quickly on Whitmer's request for a Supreme Court review. 

"Any further delay risks violation of our constituents’ core constitutional rights and could put the health and well-being of pregnant people in peril," the prosecutors wrote. 

Prosecutor pushback

The preliminary injunction stopping the enforcement of Michigan's state abortion ban was issued by state Court of Claims Judge Elizabeth Gleicher in a separate case filed by Planned Parenthood against Attorney General Dana Nessel.

Gleicher issued the injunction — a pause on state enforcement of the ban during the pendency of the lawsuit — in a May order that found Planned Parenthood likely would succeed on its arguments that the state Constitution includes a right to abortion that trumps the state abortion statute. 

The decision is being appealed in the Court of Appeals. Two of the individuals appealing the decision are Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka, who argued in part that Gleicher's injunction applied only to Nessel and could not be extended to all 83 county prosecutors since they were not defendants in the suit. 

On Friday, Becker and Jarzynka's lawyer David Kallman reiterated his belief that the injunction didn't apply to his clients and cautioned against performing abortions in those counties. 

Becker on Monday issued a statement saying that he didn't believe it was proper for him to ignore the state abortion ban or any law passed by the Legislature and governor. But he also noted there were two active cases challenging the law and he said he would "await decisions in those cases to guide my actions."

Jarzynka did not return a Friday call seeking comment. 

Planned Parenthood of Michigan countered Kallman's claims Friday by arguing Gleicher's ruling clearly enjoined prosecutors and that those who tried to enforce the law could be held in contempt of court.

Nessel on Friday declined to take a position on the order's reach to prosecutors, but on Monday clarified that Michigan's abortion ban cannot be enforced because of the injunction. 

“As it currently stands, providing abortion care in Michigan cannot be prosecuted, and I encourage those with appointments to move forward as scheduled and consult with their doctors," Nessel said in her Monday statement. 

State ensures abortion access

On Saturday, Whitmer sent a memo to all state agencies informing them that the state abortion ban remains unenforceable and that the Michigan State Police would take no action to enforce Michigan's abortion law.

"Access to emergency contraception (otherwise known as 'Plan B') will remain unchanged, as emergency contraception is not medication abortion," Whitmer said in the memo.

The state Department of Licensing and Regulatory Affairs sent a communication to health care providers Monday morning assuring them that the court-ordered injunction blocked enforcement of Michigan's abortion ban. 

"We understand that you may have some concerns about how continuing to provide medical and surgical services to women seeking abortion may impact your professional license," the agency said.

"The Department of Licensing and Regulatory Affairs will not take any action against any health professionals for providing legal abortion services while the current injunction remains in place." 

Michigan House Democratic lawmakers on Monday applauded the efforts of Whitmer and Nessel to block Michigan's abortion ban.

Democratic state Reps. Brenda Carter of Pontiac, Laurie Pohutsky of Livonia and Christine Morse of Texas Township also urged individuals to use their vote to secure abortion permanently through either a ballot initiative seeking to enshrine abortion in the state constitution or by electing pro-abortion rights candidates who could change state law. 

"Michigan Democrats are the last line of defense against attacks on reproductive rights that would take us back to 1931, barely 10 years after women were allowed to vote," Morse said.