Gov. Gretchen Whitmer wants them to weigh in. So do county prosecutors, the Michigan Catholic Conference, Michigan Right to Life, Planned Parenthood of Michigan and many others.
Everyone wants the Michigan Supreme Court to take up the issue of abortion. Preferably sooner, rather than later.
Abortion access, enforcing a 1931 law that criminalizes most abortions and potentially amending the Michigan Constitution to expressly guarantee the right to an abortion are all legal questions pending before the state’s highest court. Some have been there for weeks, others just arrived Thursday.
The four Democrats and three Republicans on the seven-person Michigan Supreme Court have yet to officially weigh in on abortion legality since the U.S. Supreme Court reversed the landmark Roe v. Wade decision in June. Whatever the court decides, it will impact abortion access in the state for years to come.
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Abortion amendment and the ballot
Supporters of abortion rights want to amend the Michigan Constitution to include language that expressly protects the right to an abortion. They collected more than 750,000 signatures from local voters, far exceeding the number needed to potentially put the proposal on the ballot this fall.
But the Michigan Board of State Canvassers refused to certify the “Reproductive Freedom For All” amendment during its meeting this week. The two Republican members of the board voted against certifying, validating the concerns of anti-abortion rights advocates who suggested a lack of generally accepted space between the words in the amendment made the contents entirely indecipherable and gibberish.
Amendment supporters formally asked the Michigan Supreme Court to weigh in on Thursday, suggesting canvassers failed to follow their duties and inappropriately gave the issue of spacing undue influence. They’re asking the court to essentially overrule the canvassers, certify the amendment language and inform state election officials that it needs to appear on the general election ballot.
Christen Pollo, a spokesperson for a group opposing the amendment called Citizens to Support MI Women and Children, reiterated that the language amounts to gibberish and suggested the Michigan Supreme Court had to keep it off the ballot.
“In our initial review of their court filings, the proponents of this proposal put spaces between each and every word, so that Supreme Court Justices could fully understand what they’re reading. It’s a pity they didn’t do that with their constitutional amendment, depriving voters of a chance to discern how extreme their proposal really is,” Pollo said.
If the court agrees to put it on, it needs to work quickly. Ballots are supposed to go out to overseas and military voters on Sept. 24, meaning clerks need to finalize ballot contents by 5 p.m. on Sept. 9.
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Planned Parenthood and Judge Elizabeth Gleicher
In April, before the U.S. Supreme Court overturned Roe, Planned Parenthood of Michigan sued Michigan Attorney General Dana Nessel in an effort to ensure access to abortion even if the high court nixed the national right to abortion.
Planned Parenthood argues the Michigan Constitution protects the right to an abortion, therefore rendering the 1931 law criminalizing all abortions except those performed to save the life of a pregnant person unconstitutional.
The lawsuit mirrors one filed by Gov. Gretchen Whitmer, but it’s different and filed in a separate court, which is important in the broader context of these cases.
Planned Parenthood sued Nessel in the Michigan Court of Claims; that’s where anyone who wants to file a lawsuit against the state or a state official typically brings their case. In May, Court of Claims Judge Elizabeth Gleicher determine Planned Parenthood’s chances of winning their lawsuit were so great that she needed to issue a preliminary injunction, barring prosecutors from enforcing the 1931 law in the event Roe was overturned, until the case was finished.
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That spurred a variety of actions from conservatives who oppose abortion rights, despite none of them actually being plaintiffs or defendants in the lawsuit.
Conservative prosecutors from Kent and Jackson counties, working together with the Michigan Catholic Conference and Michigan Right to Life, asked the Michigan Court of Appeals to take control of the lawsuit away from Gleicher and to nix her injunction.
On Aug. 1, the Court of Appeals rejected this request. But in doing so, it also noted that it did not believe Gleicher’s order had any power over any county prosecutor. Effectively, this was a win for anti-abortion rights advocates, and the decision left abortion rights supporters reeling.
Days later, Planned Parenthood asked the Michigan Supreme Court to step in and overrule the Court of Appeals, suggesting the assertion the injunction did not apply to prosecutors was incorrect. This week, the Michigan Catholic Conference and Michigan Right to Life also asked the state Supreme Court to overrule the appellate court. While this filing stated the anti-abortion rights groups still agreed with the finding that the Gleicher ruling did not apply to prosecutors, they suggested the rest of the Court of Appeals ruling was incorrect.
The Republican-controlled Michigan Legislature also sought to intervene in this case, filing motions separate from those brought by other anti-abortion rights groups but with comparable aims. On Aug. 24, the Court of Appeals also rejected their request to nullify Gleicher’s order.
The Michigan Supreme Court has not officially decided whether it will take up either appeal.
Whitmer and Oakland County
At almost the same time Planned Parenthood filed its lawsuit, Whitmer announced she was suing the 13 prosecutors representing Michigan counties with an abortion clinic. Her legal team also argued the state Constitution protects abortion and that the 1931 law criminalizing abortions is unconstitutional.
In Michigan, the governor has a special power known as executive message authority. In theory, this allows the state’s chief executive to skip the traditional legal rigmarole and take her case directly to the Michigan Supreme Court.
But the Michigan Supreme Court still has to agree to take up the governor’s request. Earlier this year, before Roe’s reversal, the justices asked Whitmer’s team a series of questions that at times veered into the underlying issues of the lawsuit. But the queries did not amount to the high court formally taking on her case.
Although Whitmer and the prosecutors she sued responded to those questions, and Whitmer has filed multiple briefs pleading for action, the Michigan Supreme Court still has not announced what it plans to do with the case.
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In order for Whitmer to assert her Executive Message authority, she had to first file the lawsuit in a local court. She chose Oakland County, an area that has trended toward Democratic political candidates in recent years.
That proved to be a prophetic choice in early August. Hours after the Michigan Court of Appeals ruled that the injunction issued by Gleicher in the Court of Claims did not apply to county prosecutors, Whitmer’s legal team asked the Oakland County court to grant a temporary restraining order that would also bar prosecutors she sued from enforcing the abortion ban.
Oakland County Circuit Court Judge Jacob Cunningham sided with the governor, issuing the emergency order. After several hearings and debate, in late August, Cunningham issued a new preliminary injunction that indefinitely prevents prosecutors in the 13 counties with abortion clinics from enforcing the 1931 law.
Lawyers representing the same conservative prosecutors in Kent and Jackson counties said they planned to appeal the injunction. That filing has yet to land at the Court of Appeals, but when it does it also has the capacity to make it to the Michigan Supreme Court.
Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.