Lawsuit: Stay-at-home order violated free speech of anti-abortion protester

Beth LeBlanc
The Detroit News

An Ann Arbor-based conservative law center is suing Gov. Gretchen Whitmer and the city of Detroit for allegedly violating the constitutional rights of an individual ticketed under Michigan's stay-at-home order while preaching and holding a sign outside an abortion clinic in Detroit.

The federal lawsuit filed on behalf of Andrew Belanger, Justin Phillips and Calvin Zastrow seeks a narrow preliminary injunction against the governor’s order that would prohibit it from being enforced against free speech expressed on public sidewalks outside abortion clinics in Michigan.

People protest outside an abortion clinic in Detroit in 2015. A legal group is suing the state of Michigan to get an exemption to Gov. Gretchen Whitmer's stay-home executive order in April 2020.

Within the executive order "there are exceptions for non-religiously motivated conduct,” said Robert Muise, the attorney representing the men. “I can literally walk on the same sidewalk, jog on the same sidewalk, bike on the same sidewalk. But I can’t walk or preach or hold a pro-life sign on the same public side walk?”

Whitmer’s office is still reviewing the lawsuit and does not usually comment on litigation, Whitmer spokeswoman Chelsea Lewis said Friday. 

“The governor, however, carefully considers all of the actions she is taking in response to the COVID-19 pandemic, and she is confident that these actions are lawful and necessary to protect the health and safety of Michiganders during this unprecedented public health emergency,” Lewis said.

The city did not immediately respond to a request for comment.

Grand Rapids U.S. District Judge Janet Neff denied Thursday a motion for an immediate temporary restraining order and instead ordered that the state and city be given 14 days to respond before she decides on a preliminary injunction.

Neff noted the parties should attempt “to negotiate a resolution to this dispute” in good faith.

The lawsuit stems from a March 31 interaction between Belanger and Detroit police outside the Scotsdale Women’s Center in Detroit. 

Belanger was “preaching, holding a pro-life sign and practicing social distancing" outside the site when 15 Detroit police officers arrived, according to the lawsuit.

A police officer told Belanger he was there “for a violation of a stay at home order by the governor” and issued him a misdemeanor citation for “refusing to leave, protesting outside while shutdown is in effect.”

While Belanger was speaking with police, Phillips, a friend, joined him and they later called Zastrow, another anti-abortion supporter, to warn him police were issuing citations.

The lawsuit alleges the actions against Belanger and the chilling effect on Phillips and Zastrow violated their First Amendment right to free speech and free exercise of religion and their 14th Amendment right to equal protection.

The Detroit Police Department’s actions “injured plaintiffs in a way likely to chill a person of ordinary firmness from further participation in expressive religious activity,” the lawsuit said.

The suit is seeking “nominal damages,” attorney fees and costs, and an injunction on the governor’s order that would exempt anti-abortion protesters outside abortion clinics.

Muise emphasized that the lawsuit is not seeking a complete overturn of Whitmer’s order, but a “very limited” exemption within it.

“I understand this is a serious crisis, but we just can’t throw the Constitution away,” Muise said. “We have fundamental liberties that need to be protected even in times of crisis.”

The American Freedom Law Center also criticized in a statement the continuation of abortion procedures in Michigan, arguing that it is an elective surgery that is otherwise banned under a separate COVID-19-related executive order.

If abortion clinics are closed, Muise said, "pro-lifers won’t need to be there on the public sidewalks."

The criticism has been echoed by other anti-abortion groups such as Right to Life of Michigan, which last week called on Whitmer to clarify “that elective abortions are a non-essential procedure.”

“We’re postponing hip replacements or fixing cracked teeth to ensure our front-line doctors and nurses are equipped,” Right to Life of Michigan President Barbara Listing said in a statement. “These procedures in many cases will be more burdensome and expensive for people in need because they had to wait. Why aren’t we treating them fairly? Why should abortion facilities get to be above the law?”

But abortion rights groups are pushing back on abortion clinic closures as well as the continued presence of protesters outside clinics in Michigan.

The National Abortion Federation on Friday urged Whitmer to prohibit groups from gathering outside abortion clinics in an effort to decrease the risk of COVID-19 exposure. The federation argued that Whitmer’s penalty exemption for churches in her ban on assemblies of more than 50 people encouraged the gatherings.

“…the persistence of anti-abortion protesters in gathering en masse outside of clinics is a public health issue that simply must be addressed, and the unfortunate fact of the matter is that the religious exemption to Michigan’s stay at home order has become these extremists’ carte blanche for harassing health care workers and their patients, and increasing their odds of COVID-19 exposure in the process,” said Katherine Hancock Ragsdale, president and CEO of the federation.