MICHIGAN (May 23, 2022)— the Michigan Supreme Court agreed Friday to consider key procedural questions in Gov. Gretchen Whitmer’s legal challenge to the state’s dortman law that criminalizes most abortions.
But the ruling did not indicate the court made any decision on whether it will actually take up Whitmer’s argument that there is a right to an abortion under the Michigan Constitution.
Instead, the state high court asked whether a lower court’s decision to temporarily block enforcement of that law throws a wrench in the governor’s case, and if the court should wait for the U.S. Supreme Court to decide the fate of Roe v. Wade before weighing in on state abortion law.
Abortions remain legal in Michigan and throughout the U.S. But the U.S. Supreme Court is set to decide a case as soon as Monday that could overturn Roe, the 1973 case that determined there was a national constitutional right to abortion. A leaked draft opinion in that case showed a majority of the court’s justices apparently ready to overturn the decision, sending regulation of abortion to the states.
Fearing such a decision from the court, Whitmer recently sued 13 local prosecutors in counties where there are abortion clinics. She argued a 1931 state law that makes it illegal to conduct any abortion unless done to save the life of a pregnant person is unconstitutional. She has also argued the state Constitution guarantees the right to an abortion.
In theory, if Roe is overturned, that 1931 law would again be enforceable.
“In light of the leaked opinion from conservatives justices of the U.S. Supreme Court, and the fact that Michigan has an outdated law on the books from 1931 making abortion a felony even in cases of rape or incest, it has never been more important for the Michigan Supreme Court to resolve whether the state constitution protects the right to abortion,” Whitmer spokesman Bobby Leddy said Friday.
“We are reviewing the Michigan Supreme Court’s questions, and welcome the opportunity to inform the court of the need to resolve this crucial constitutional question now. Women need clarity and confidence that their rights will be protected, and that’s what Gov, Whitmer is hoping to achieve with this case.”
David Kallman, a lawyer representing some of the prosecutors sued by Whitmer, did not immediately return a voicemail.
Typically, it would take considerable time for such a lawsuit to make it to the Michigan Supreme Court. While Whitmer filed her lawsuit in Oakland County, she’s asking the high court to immediately hear the case, relying on a little-used power called Executive Message authority.
In an entirely separate lawsuit that makes similar arguments, Planned Parenthood sued Michigan Attorney General Dana Nessel in the Court of Claims. This week, Court of Claims Judge Elizabeth Gleicher determined Planned Parenthood had a good chance to win their legal case arguing the 1931 law was unconstitutional, issuing a temporary injunction against enforcing the law if the U.S. Supreme Court overturns Roe.
The state supreme court has questions about that decision, Whitmer’s power and more that they want her team to answer in the next two weeks. The questions include:
- Whether the Court of Claims’ injunction makes it unnecessary for the Michigan Supreme Court to immediately take up the governor’s case;
- Whether the questions posed should be answered before the U.S. Supreme Court determines the fate of Roe v. Wade, and whether that decision would be binding to the questions of state abortion rights raised by the governor
- “Whether there is an actual case and controversy requirement and, if so, whether it is met here”;
- An explanation of the Executive Message powers granted by law and why the question of abortion constitutionality merits using this authority, and
- Whether the power only allows the governor to defend existing laws, as opposed to questioning the constitutionality of existing laws.
While a majority of the seven state Supreme Court justices agreed with the decision, several of the Democrats questioned the timeline. Some suggested the scheduled needed more urgency.
The order “fails to treat this case with the urgency it deserves,” wrote Justice Megan Cavanagh, in a partial dissent joined by Chief Justice Bridget McCormick and Justice Elizabeth Welch.
Several of the questions raised her echo those presented by lawyers working for local prosecuting fighting the governor’s lawsuit. Kallman and other lawyers with the conservative Great Lakes Legal Center say Whitmer has no grounds to sue, noting no one has been charged under the 1931 abortion law.
Prosecutors and others who have already filed briefs in the case are invited to provide the court with additional information, according to the ruling.
- Detroit Free Press