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Michigan Legislature joins abortion fight to defend 1931 ban

Michigan's Republican-led Legislature wants to a judge to lift her temporary injunction against a 1931 ban on abortion that would take effect should the U.S. Supreme Court overturn Roe v. Wade. (Shutterstock image)

LANSING – Michigan’s Republican-led Legislature is asking a state judge to make an old abortion ban enforceable again if and when the U.S. Supreme Court overturns Roe v. Wade.

As outlined in a new Michigan Court of Claims filing, the Legislature is attempting to intervene in a Planned Parenthood lawsuit against the state, arguing no one is adequately defending the 1931 law opposed by Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats. 

“The Legislature’s interest in defending a statute against constitutional challenge is overwhelming where, as here, the executive branch official charged with defending statutes refuses to do so from the outset,” attorney Nicholas Miller wrote in a brief. 

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Court of Claims Judge Elizabeth Gleicher last month temporarily suspended potential enforcement of the long-dormant law, which would make it a felony for anyone to perform an abortion in the state. The only exception would be to preserve the life of the mother.

If Roe is overturned this month, as expected following the rare leak of a draft opinion by the high court, Planned Parenthood and their patients "face a serious danger of irreparable harm if prevented from accessing abortion services,” Gleicher ruled.

But the GOP-led Legislature, in its late Monday filing, sought to lift the preliminary injunction, arguing the court does not have jurisdiction to decide the matter because the 1931 abortion ban is not currently in effect. 

“This case is premised purely on speculative and remote events,” Miller wrote. “The statute does not subject a pregnant woman to prosecution. And Plaintiffs do not allege that any woman has been denied an abortion based on (the law) or that any doctor has refused to perform an abortion due to a supposed threat of prosecution.”

It’s the latest in an escalating feud over abortion rights, including an ongoing petition drive aiming to overturn the 1931 law and a separate suit from Whitmer asking the Michigan Supreme Court to decide its constitutionality. 

In its initial complaint, Planned Parenthood argued the law 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 their initial complaint. 

Violations would be punishable by up to four years in prison and/or a fine of up to $5,000. Physicians who perform abortions could also face administrative penalties from the state, including revocation of medical licenses. Clinics could also face penalties.

Right to Life of Michigan, the Michigan Catholic Conference and prosecuting attorneys for Jackson and Kent counties last month asked the Court of Appeals to take over the Planned Parenthood lawsuit and lift Gleicher's injunction.

Anti-abortion groups had asked Gleicher to recuse herself because she has donated money to Planned Parenthood of Michigan and represented the abortion provider as a volunteer attorney for the ACLU in the 1990s. 

In a Tuesday statement announcing the Legislature's decision to intervene, state Rep. Pam Hornberger called the Planned Parenthood lawsuit "illegitimate and outrageous."

Nessel has aid said she wouldn’t enforce the ban if it takes effect, so she, Planned Parenthood and Gleicher "all want the same outcome," said Hornberger, R-Chesterfield Township. 

"It’s a blatant conflict of interest and undermines the public’s trust in our judicial system,” Hornberger said.

Regardless of the Planned Parenthood suit, Whitmer has argued the Michigan Supreme Court should not wait to weigh in on the matter. 

The state’s highest court is "the only forum with the power to conclusively settle the important constitutional issues" that will decide potential enforceability of the 1931 abortion ban, state attorneys for Whitmer wrote last month in a filing. 

Michigan Supreme Court “guidance is needed so that every Michigander knows their rights," the Whitmer attorneys wrote. 

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