Whitmer to Supreme Court: Monday abortion rights 'fire drill' requires immediate action

Beth LeBlanc
The Detroit News

Gov. Gretchen Whitmer on Thursday asked the Michigan Supreme Court a third time to consider her case challenging Michigan's ban on abortion, arguing this week's confusion over the ability of county prosecutors to enforce the law is evidence of the need for high court intervention. 

Whitmer's request comes after the Court of Appeals on Monday ruled a May preliminary injunction stopping enforcement of the ban did not apply to county prosecutors. State officials scrambled to address the decision Monday and ended the day with a temporary restraining order from Oakland County Circuit Court — an order that was extended Wednesday to mid-August.

“Monday’s fire drill is yet another example of why the Michigan Supreme Court must act," Whitmer said in a statement Thursday. "A legal patchwork that changes day to day, county to county is untenable. We need certainty that access to abortion is constitutionally protected in Michigan."

Gov. Gretchen Whitmer

Whitmer's notice to the Michigan Supreme Court of intervening developments argued the status of the state's law is "changing by the day and even by the county."

Monday's order left health providers unsure of the way forward, so much so that Northland Family Planning Centers in Macomb County said they would stop providing abortions because the clinic believed Macomb County Prosecutor Pete Lucido would prosecute its providers, the filing said. 

"This court is the only one that can fully address these concerns and conclusively settle the important constitutional questions underlying them," Whitmer wrote in Thursday's filing. 

Whitmer filed her case in April arguing Michigan's constitution included a right to abortion  in Oakland County Circuit Court against 13 county prosecutors with abortion providers within their counties. At the same time, the governor submitted an executive message to the Michigan Supreme Court asking the justices to consider the case immediately rather than allowing it to proceed through lower courts first. 

The high court asked Whitmer for more information and has allowed several groups to file amicus briefs, but has not yet said whether it would take up the case. 

Whitmer's Thursday filing marks her second "notice of intervening developments," which included a renewed plea for immediate consideration. 

Separate from Whitmer's suit, Planned Parenthood of Michigan in April filed a similar case in the Court of Claims against Attorney General Dana Nessel in April, also seeking a ruling that there is a right to abortion in the state constitution that supersedes Michigan's abortion ban.

Both Whitmer and Planned Parenthood filed the suits in anticipation of the U.S. Supreme Court's June 24 Dobbs decision that found there was no right to abortion in the U.S. Constitution and sent the issue back to the states.

Court of Claims Judge Elizabeth Gleicher ordered the Michigan law enjoined from enforcement in the Planned Parenthood case in May, and ordered Nessel to convey the decision to county prosecutors. 

On Monday, the Court of Appeals ruled county prosecutors could not be blocked from enforcing the law through the Court of Claims since that court dealt with state actors only. 

The decision resulted in an emergency request for a temporary restraining order from Whitmer's team to Oakland County Circuit Judge Jacob Cunningham. Cunningham on Monday responded almost immediately to Whitmer's request and ordered the 13 county prosecutors listed as defendants in the case to refrain from enforcing the state's abortion ban. 

Cunningham on Wednesday extended the order through mid-August, when he'll hear arguments on issuing a preliminary injunction.

Planned Parenthood, in the meantime, challenged the state Court of Appeals decision Wednesday up to the Michigan Supreme Court, where the group requested immediate consideration and a stay of the lower court order.

Whitmer's office on Wednesday filed an amicus brief supporting Planned Parenthood's appeal to the state Supreme Court.