DETROIT — The Michigan Court of Appeal on Wednesday declined to take up an appeal from the Michigan House and Senate requesting a three-judge panel overturn a lower court preliminary injunction that's stopping the enforcement of the state's abortion ban.
The judges denied the GOP-led Legislature's appeal because it wasn't persuaded that the issue needed an immediate appellate review, according to a brief order issued Wednesday.
The Legislature asked the Court of Appeals to weigh in on the matter July 6, after Court of Claims Judge Elizabeth Gleicher rejected lawmakers' request that she reverse the May preliminary injunction she issued stopping enforcement of the state's abortion law.
The House and Senate argued in their filing to the Court of Appeals that Gleicher lacked jurisdiction to issue the preliminary injunction and that she'd incorrectly ruled Planned Parenthood of Michigan was likely to succeed on its argument that Michigan's constitution contained a right to abortion.
The Wednesday decision on the House and Senate appeal was one piece of Michigan's complex puzzle of abortion litigation, which stems from two root cases but involves several appeals in varying courtrooms as the case works its way up to the Michigan Supreme Court.
The decision issued Wednesday was in relation to Planned Parenthood of Michigan's early April case filed against Attorney General Dana Nessel, who has said she will not enforce or defend Michigan's 1931 law banning abortion in all cases except to save the life of the mother.
Planned Parenthood of Michigan filed the case in anticipation of the U.S. Supreme Court's eventual June 24 Dobbs decision overturning Roe v. Wade, the landmark 1973 case establishing a constitutional right to an abortion. The lawsuit attempted to stop Nessel and county prosecutors from enforcing the state's abortion ban and establish that there is a right to abortion in the Michigan constitution that supersedes the state law banning abortion.
Gleicher, who disclosed early on she was a donor to Planned Parenthood, granted a preliminary injunction to the group and directed Nessel to convey her ruling to county prosecutors.
The House and Senate intervened shortly after the May preliminary injunction was issued since Nessel refused to defend the state law.
Around the same time, two county prosecutors objected to Gleicher's ruling and in early August a Court of Appeals panel ruled the prosecutors were not bound by Gleicher's ruling because the order applied only to state actors.
The decision set off a scramble that left state officials turning to a separate case filed by Gov. Gretchen Whitmer in early April that had been largely inactive while the Planned Parenthood case proceeded.
Whitmer's suit also argues there is a constitutional right to abortion, but it was filed against 13 county prosecutors making it the better vehicle to stop prosecutors from enforcing the ban.
Oakland County Circuit Judge Jacob Cunningham issued a temporary restraining order and, later, a preliminary injunction in Whitmer's case this month, stopping the 13 prosecutors from enforcing the law.
Whitmer also has been petitioning the Michigan Supreme Court to intervene in the case early rather than allow the litigation to be decided and appealed up through the lower courts.
But so far the high court has remained mum, except to ask a few more questions and accept amicus briefs on the issue. Justice Richard Bernstein said Sunday it was unlikely, with the two preliminary injunctions in place, that the court would depart from its normal process.
But Bernstein argued the Michigan Supreme Court will be the final arbiter on abortion rights in Michigan, whether through the currently pending cases or through interpretation of a ballot initiative seeking to establish a right to abortion in the Michigan Constitution.
"Ultimately, it is the Michigan Supreme Court that will make the absolute final determination, it will be the Michigan Supreme Court that will have the final word in a woman's right to choose in the state of Michigan," Bernstein said Sunday.
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