DETROIT — A state Court of Claims judge ruled Wednesday that Michigan's 1931 law banning abortion is unconstitutional and granted a permanent injunction that stops enforcement of the law for the foreseeable future.
Court of Claims Judge Elizabeth Gleicher's injunction, a final ruling in Planned Parenthood of Michigan's case against Attorney General Dana Nessel, includes instructions for Nessel to advise Michigan county prosecutors that the law has been declared unconstitutional.
Since the U.S. Supreme Court's June 24 ruling that overturned a half-century of abortion rights on the national level, Michigan's long-dormant ban on abortion in all cases except to save the life of the mother has been the focus of intense court battles.
An appellate panel has ruled Gleicher's decisions in the case aren't binding on county prosecutors, but that has been appealed to the Michigan Supreme Court.
Gleicher said Wednesday the appellate panel's "nonprecedential order" doesn't bind her court and questioned the "accuracy" of the conclusion the appellate judges reached.
The state's abortion ban, Gleicher wrote, is "facially unconstitutional because its enforcement would deprive pregnant women of their right to bodily integrity and autonomy, and the equal protection of the law."
The law "will endanger the health and lives of women seeking to exercise their constitutional right to abortion," she said. "Enforcement also threatens pregnant women with irreparable injury because without the availability of abortion services, women will be denied appropriate, safe and constitutionally protected medical care."
Planned Parenthood of Michigan celebrated the decision as a "critical victory" for abortion access in Michigan.
"Today’s Court of Claims ruling will ensure that Michiganders can continue to make deeply personal decisions about their health, lives, and futures without interference from state officials," said Dr. Sarah Wallett, chief medical operating officer for the group and a plaintiff in the case.
Michigan's abortion ban, prior to Gleicher's Wednesday order, has been blocked by enforcement through Gleicher's May preliminary injunction in the Planned Parenthood case and Oakland County Circuit Judge Jacob Cunningham's August preliminary injunction in a case brought by Gov. Gretchen Whitmer against 13 county prosecutors.
There are three different requests related to those cases currently before the Michigan Supreme Court.
One of those requests appeals a Court of Appeals decision refusing to remove Gleicher from the Planned Parenthood case; one appeals the Court of Appeals decision excluding county prosecutors from Gleicher's orders; and an executive message from Whitmer seeks high court consideration of her Oakland County challenge.
Planned Parenthood and Whitmer filed their cases within hours of each other on April 7 in anticipation of the U.S. Supreme Court's June 24 Dobbs decision overturning abortion rights and sending the question of abortion's legality back to the states. Both suits seek a court ruling that Michigan's Constitution includes a right to abortion.
In her Wednesday order, Gleicher restated her finding that the Michigan Constitution's right to bodily integrity and expanded on it by ruling that the constitutional right to due process is "broad enough to include a women's right to abortion."
"A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives — it denies them of their dignity," Gleicher wrote. "Michigan's Constitution (forbids) this violation of due process."
Gleicher denied a motion to dismiss Planned Parenthood of Michigan's case filed by the GOP-led House and Senate, rejecting arguments that there is no actual controversy or lack standing.
Whether a controversy existed when the case was first filed in April or when Gleicher issued a preliminary injunction in May is immaterial in light of the U.S. Supreme Court's ruling in June overturning its landmark Roe v. Wade decision, Gleicher wrote.
"More pertinent is that several county prosecutors have public express an intent to pursue prosecutions of abortion providers unless enjoined from doing so," Gleicher wrote.
David Kallman, an attorney who represents Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker, questioned the judge's conclusion that she isn't bound by the Court of Appeals opinion involving county prosecutors, noting she was named as a defendant in the appeal.
Were his clients not bound by a separate preliminary injunction out of Oakland County against 13 county prosecutors, Kallman said, they would not comply with Gleicher's order.
"It does not apply to them," Kallman said of Gleicher's order. "They are not agents of the attorney general. They are their own separately elected, constitutionally protected office.
"If they try to enforce this on any other of the 70 prosecutors in the state" not bound by the Oakland County decision, Kallman added, "we would happy to represent them."
Nessel, who is the named defendant in the case but has vowed not to enforce the abortion ban, celebrated Gleicher's decision Wednesday.
"While legal victories like today’s preserve access to abortion care for now, ensuring women have the right to make personal healthcare decisions today and in the future must be pursued at the ballot box," Nessel said.
Whitmer celebrated the decision but warned it wasn't the final word on abortion rights in Michigan.
“This decision is likely to be challenged, and we know that there’s a group of extremists who will stop at nothing to ban abortion even in cases of rape and incest," Whitmer said. "With our rights still hanging by a thread, the Michigan Supreme Court needs to provide certainty and rule on my lawsuit to protect the right to abortion in the state constitution."
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