GOP lawmakers appeal court order halting Michigan abortion ban

Update: 1931 Michigan abortion ban can be enforced by county prosecutors, court rules

Michigan legislative Republicans have asked an appeals court to overturn an injunction blocking a state abortion ban from going back into effect, arguing that the judge in the case made “myriad errors” and engaged in “extreme judicial overreach.”  

The new filing, submitted to the Court of Appeals Wednesday by attorneys for the GOP-majority House and Senate, argued that Court of Claims Judge Elizabeth Gleicher “recognized a brand new right to abortion under the Michigan Constitution” despite contrary state court precedent, and without addressing jurisdictional concerns or questions about whether existing abortion regulations would survive if abortion remains legal.

A “judicial opinion that overreaches to settle this issue usurps the power of the Legislature, exacerbates polarization, and smothers the potential for a democratic solution and public buy-in,” the lawmakers’ legal brief argued. 

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The U.S. Supreme Court decision in June overturning Roe v. Wade left the question of abortion rights is up to individual states. In Michigan, Roe’s reversal resuscitated a state statute from 1931 that generally banned abortion. But the reimplementation of that ban was blocked by Gleicher’s injunction in May, when a leaked draft of the Supreme Court’s opinion became public and signaled Roe’s demise. 

The Michigan Legislature should have the ability to consider revisiting Michigan’s abortion laws without judicial interference, attorneys for House and Senate Republicans wrote in challenging the injunction before the Michigan Court of Appeals. The case and the request for an injunction came from abortion provider Planned Parenthood of Michigan. 

Gleicher, a donor to Planned Parenthood who had also represented the organization in the past, declined to remove herself from hearing the case, saying she could remain impartial. In her order issuing an injunction, the judge concluded Planned Parenthood and prospective abortion patients would "face a serious danger of irreparable harm if prevented from accessing abortion services” under the statute if Roe were overturned. 

Planned Parenthood and other Michigan abortion providers have continued to provide abortions since the Supreme Court decision overturning Roe was handed down in June. Abortion-rights supporters, aware of the temporary nature of the injunction as the case proceeds, are gathering hundreds of thousands of signatures to secure a November ballot issue that would enshrine abortion rights in the state constitution. 

Separately, Democratic Gov. Gretchen Whitmer has petitioned the Michigan Supreme Court, asking it grab hold of the uncertainty in Michigan by directly answering whether the Michigan Constitution already protects abortion rights. 

In its initial complaint, Planned Parenthood argued the 1931 law — which bans abortion except to save the life of the mother — is written so vaguely that "sheriffs, prosecutors and courts could have broad discretion to assert that a range of undetermined medical practices are a crime.” 

That would put physicians in the "precarious position of not knowing what acts could subject them to criminal investigation or prosecution,” attorneys wrote in the initial complaint. 

The Republican legislative appeal is separate from another appeal of the injunction by Right to Life of Michigan and the Michigan Catholic Conference.

In addition, Republican prosecutors in Kent and Jackson counties have also challenged the injunction on grounds that the judge’s order only applies to the office of Michigan Attorney General Dana Nessel and not to county-level prosecutors.

GOP lawmakers initially moved to intervene in the case in June, arguing, among other things, that none of the current parties in the case were adequately defending the 1931 law. The suit was ostensibly filed against Nessel’s office, but the Democratic AG has made clear for months that her office would not enforce the 1931 statute if it went back into effect.

Legislative Democrats, the minority party in the House and Senate, did not back the motion to intervene. The House Democratic Caucus filed an amicus brief indicating its members’ support of abortion rights, and Democrats in both chambers have pushed to repeal the existing abortion ban.