DETROIT — A Michigan Court of Claims judge has granted a preliminary injunction to Planned Parenthood of Michigan that would stall the enforcement of Michigan's 1931 abortion ban should the U.S. Supreme Court overturn the landmark 1973 Roe decision enshrining abortion as a constitutional right.
Court of Claims Judge Elizabeth Gleicher granted the preliminary injunction in an order Tuesday, concluding Planned Parenthood was likely to succeed on arguments that "forced pregnancy" is a threat to a woman's constitutional right to bodily integrity and due process.
"Forced pregnancy, and the concomitant compulsion to endure the medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions," Gleicher wrote.
"If a woman's right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth."
Planned Parenthood filed the lawsuit against state Attorney General Dana Nessel in April, asking the court to find a right to abortion in the Michigan constitution that would override the ban first established in 1846 and reenacted in 1931. The ban has lain dormant following the 1973 Roe decision.
The Planned Parenthood suit was filed on April 4, the same day Michigan Gov. Gretchen Whitmer filed a similar challenge in Oakland County Circuit Court against 13 county prosecutors who would be tasked with enforcing the ban at abortion clinics in their counties. Whitmer accompanied her filing with an executive message to the Michigan Supreme Court asking the high court to consider the case immediately instead of waiting for it to be appealed to the justices.
The Democratic governor welcomed the decision in a Tuesday statement as an "important victory for Michiganders."
"While today’s preliminary injunction offers immediate, critical relief, we need the Michigan Supreme Court to weigh in and establish the right to abortion under our state constitution," Whitmer said. "We must protect the rights of nearly 2.2 million women in Michigan to make decisions about their bodies because, however we personally feel about abortion, a woman’s health, not politics, should drive important medical decisions.”
A woman holds her sign with pride at the planned parenthood advocates of Michigan rally in Ann Arbor.
The lawsuit has been criticized by anti-abortion advocates because it was filed against what they called a friendly party because Nessel said neither she nor anyone in her office would defend the state law.
Additionally, Gleicher disclosed early on in the case that she was a regular donor to Planned Parenthood of Michigan and had represented the group in a key case challenging the constitutionality of the law.
Nessel in a filing earlier this month said the case should be dismissed because there are no adverse parties nor is there a case or controversy upon which the case could be built.
Gleicher disagreed and said such an argument would destroy a plaintiff's "ability to obtain a meaningful legal ruling with actual effect."
"According to defendant's thesis, in any case challenging the constitutionality of a statute the attorney general would be empowered to derail a constitutional challenge by simply communicating a non-specific consonance with the plaintiff's position," Gleicher wrote.
" ... the attorney general's unwillingness to stipulate to a preliminary injunction or any other relief creates adversity in this case."
The judge argued that the 1997 Court of Appeals decision in the Mahaffey case — where she served as counsel to Planned Parenthood — established that the Michigan Constitution's right of privacy did not include a right to abortion.
But, she noted, Planned Parenthood in 2022 is not invoking protections for abortion under the right to privacy; instead, it is saying the right to abortion lies in the Michigan Constitution's right to bodily integrity and due process, which were not decided in the Mahaffey case.
"Pregnancy implicates bodily integrity because even for the healthiest women it carries consequential medical risks ... thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one," Gleicher wrote.
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