DETROIT — Michigan's Republican-controlled Legislature has asked an appellate court to overturn a judge's preliminary injunction currently stopping Michigan's abortion ban from being enforced.
The Michigan House and Senate argued in their Wednesday appeal that Court of Claims Judge Elizabeth Gleicher's May preliminary injunction blocking Michigan's abortion ban was an "extreme judicial overreach" and asked the Court of Appeals to overrule Gleicher's decision.
"The court below improperly arrogated to itself the power to decide a contentious social issue that the Michigan Constitution, properly understood, allows the people of Michigan and their chosen representatives to decide," the Legislature's filing said.
"The jurisdictional and constitutional errors of the Court of Claims constitute an egregious abuse of judicial power."
The Legislature's filing has not yet been assigned to a three-judge panel of Court of Appeals judges.
Wednesday's appeal is separate from another filing in the Court of Appeals from Right to Life of Michigan and the Michigan Catholic Conference asking an appellate panel to take control of the Court of Claims case and vacate Gleicher's preliminary injunction. That motion could be decided in the coming days or weeks.
The filing, which comes after Gleicher last month denied the Legislature's request that she reconsider her preliminary injunction, argues the judge shouldn't have granted the preliminary injunction because she lacked judicial jurisdiction over the case.
Not only have plaintiff Planned Parenthood of Michigan and defendant Attorney General Dana Nessel publicly stated they're in agreement on the issue of the state's abortion ban, but there have been no prosecutions under Michigan's abortion ban that would provide a case or controversy to serve as the basis for the suit, the Legislature argued.
Despite those baseline jurisdictional issues, Gleicher found in May that Planned Parenthood was likely to succeed in its argument that there was a right to abortion in the Michigan Constitution's right to bodily integrity.
To reach that conclusion, the Legislature said, Gleicher built a "daisy chain" that found the constitutional right to substantive due process included a right to bodily integrity, which included a right to refuse medical treatment, which included a right to obtain medical treatment, which included a right to obtain an abortion.
The right to obtain medical treatment relegates doctors to the role of "vending machines" and "each step in the chain is unsupported," the Legislature argued.
"The Court of Claims, however, seems to regard the right to obtain medical treatment as a right to obtain any medical treatment that a person wants, including an elective, non-medically necessary abortion — a procedure that, if successful, always ends the life of another," the Legislature wrote.
Lawmakers, in the wake of the June 24 Dobbs decision, "will have the opportunity to revisit abortion laws," but those deliberations should not be left to a lone state judge, the filing said.
"The democratic process will allow for debate and compromise among the public and its elected representatives," the Legislature wrote. "By contrast, a judicial opinion that overreaches to settle this issue usurps the power of the Legislature, exacerbates polarization, and smothers the potential for a democratic solution and public buy-in."
Planned Parenthood of Michigan filed its suit challenging the constitutionality of Michigan's abortion ban in early April, the same day Gov. Gretchen Whitmer filed a similar case against 13 county prosecutors in Oakland County Circuit Court.
Whitmer accompanied her request with an executive message to the Michigan Supreme Court, asking to leapfrog the lower courts and go directly to the highest court for a decision. That court has not yet signaled whether it will take up the case, but it's likely either Planned Parenthood's or Whitmer's case will eventually end up in front of justices, where there is a 4-3 Democratic-nominated majority.
