DETROIT — A Michigan Court of Claims judge assigned a high-profile challenge of Michigan's 1931 abortion ban disclosed Thursday that she is an annual donor to Planned Parenthood of Michigan, the main plaintiff in the lawsuit.
Court of Claims Chief Judge Elizabeth Gleicher also represented Planned Parenthood in a key abortion rights case challenging the abortion ban in 1997, a court clerk disclosed in a letter to attorneys in the case. Almost a quarter-century ago, the state Court of Appeals upheld the constitutionality of Michigan's abortion ban, which has been largely inactive since the 1973 U.S. Supreme Court decision in Roe v. Wade enshrined abortion rights in the U.S. Constitution.
"While Judge Gleicher does not believe this warrants her recusal, and is certain that she can sit on this case with requisite impartiality and objectivity, she believes that this letter of disclosure is appropriate," according to the Thursday letter.
"If any party disagrees with Judge Gleicher's assessment, an appropriate motion may be filed."
Gleicher is a 2007 appointee of Democratic former Gov. Jennifer Granholm. Her assignment to the case was random, according to the letter.
It is unlikely any of the current parties listed in the lawsuit will seek to block Gleicher’s assignment to the case.
None of the parties currently involved in the suit plan to challenge Gleicher's assignment to the case.
"We take the chief judge at her word that she can fairly decide the legal questions presented in this case," group spokeswoman Angela Vasquez-Giroux said.
Attorney General Dana Nessel's office, the named defendant in the case, said it had no reason to believe Gleicher couldn't be impartial. The statement came a week after Nessel told media neither she nor anyone in her office would defend the state's 1931 abortion law.
"There are clear ethical rules that govern conflict and disqualifications," said Lynsey Mukomel, a spokeswoman for Nessel. "Judge Gleicher disclosed her past associations out of an abundance of caution and correspondence from the Court states Judge Gleicher, ‘… does not believe this warrants her recusal, and is certain that she can sit on this case with requisite impartiality and objectivity.’"
Right to Life of Michigan, which is not a party in the case, expressed concern over Gleicher's contributions to Planned Parenthood as well as her involvement in the 1997 case and other pro-abortion rights causes as a lawyer.
"It seems very difficult to remain impartial under those circumstances," said Genevieve Marnon, legislative director for Right to Life of Michigan.
Campaign finance records indicate Gleicher is a frequent contributor to state Democratic candidates and causes, including the Michigan Democratic State Central Committee, Emily's List and defendant Nessel in March 2021, when she gave $1,000 to Friends of Dana Nessel.
The Michigan code for judicial conduct allows judges to make contributions to a political party but prohibits endorsements of any one candidate. Gleicher's giving doesn't appear to be unusual among state judges.
Court of Claims appointees of Republican former Gov. Rick Snyder, Judges Thomas Cameron and Brock Swartzle, also have given to county Republican parties and Swartzle gave $260 in October to Republican attorney general candidate Tom Leonard, according to campaign finance records.
Michigan court rules allow parties to a suit to ask for the disqualification of a judge if they believe he or she is biased against a party or attorney, has personal knowledge of facts in the case, has been "consulted or employed as an attorney" in the litigated issue, was an attorney for a party within two years of the case, has an economic interest in a proceeding or if the judge or a family member is involved in the case.
Any motion seeking a judge's disqualification has to be filed within 14 days from the time the grounds for disqualification are discovered, Michigan court rules indicate.
The challenged judge would decide on any motion for disqualification and, if he or she denies the motion, the challenging party has the option to ask for a new review by the chief judge of the court. Since Gleicher is the chief judge, any motion requesting her disqualification would go to the state court administrator who would assign the review to a different judge, according to Michigan court rules.
If a judge is disqualified, the case would be assigned to another judge within the Court of Claims.
The parties able to challenge Gleicher's assignment are Planned Parenthood of Michigan, its chief medical officer or the office of Attorney General Dana Nessel, against whom the lawsuit was filed.
Michigan gubernatorial candidate Gretchen Whitmer fires up the crowd during her speech at the 47th annual Hash Bash, Saturday, Apr. 7, 2018 in Ann Arbor, Mich.
Solicitor General Fadwa Hammoud is listed as representing the Attorney General's office, but neither she nor anyone else in the office plan to defend the law. Nessel announced last week that her office would not defend the law unless or until ordered by a court because of personal opposition.
"I don't want to use the resources of my offices and I don't think I should be made to use the resources of my office to enforce a law that I know will result in women dying in this state," said Nessel, a first-term Democrat who is running for re-election.
The GOP-led Legislature has indicated it is reviewing its legal options in relation to the case. Nessel suggested last week that lawmakers could intervene in the suit if they were concerned about defending the state law.
The lawsuit was one of two filed last week challenging the 1931 ban as unconstitutional in anticipation that the U.S. Supreme Court overturns Roe v. Wade in the next two months. If the U.S. Supreme Court overturns the federal ruling, Michigan's 1931 ban on performing abortions would be able to take its full effect.
The lawsuit assigned to Gleicher was filed by Planned Parenthood of Michigan and its chief medical officer against the Attorney General's office. A second suit was filed in Oakland County Circuit Court the same day by Gov. Gretchen Whitmer against 13 county prosecutors who would be tasked with enforcing Michigan's law on abortion clinics within their jurisdictions.
There are two key cases that have upheld Michigan's 1931 law and that are noted in the lawsuits from Planned Parenthood and Whitmer as needing to be overturned.
In a 1973 People v. Bricker decision, the Michigan Supreme Court upheld the use of the 1931 ban to prosecute a woman who was not a doctor for planning to carry out an abortion. The high court ruled Roe v. Wade may inhibit the state's ability to prosecute doctors for carrying out abortions, but it did not block the state from prosecuting non-licensed individuals for carrying out an abortion.
The Bricker decision was used in a separate 1996-97 case, called Mahaffey v. Attorney General, when Planned Parenthood challenged an informed consent law by arguing the 1931 law was unconstitutional because there was a right to abortion in the state Constitution.
Gleicher represented Planned Parenthood in the Mahaffey case as a volunteer attorney for the American Civil Liberties Union.
A Court of Appeals panel ended the Mahaffey case in 1997 when it ruled it couldn't conclude the people who adopted the 1963 Michigan Constitution intended to create a right to abortion.
"An examination of Michigan Supreme Court precedent also leads to the conclusion that there is no right to abortion under the Michigan Constitution," the decision said.
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