Updates About Lower Court Rulings

After two days of oral arguments, reproductive rights advocates won a temporary victory on August 19 when Oakland County Circuit Court Judge Jacob Cunningham extended a preliminary injunction on the 1931 law that essentially bans abortion in Michigan.

The preliminary hearing in Whitmer v. Linderman et al. was called by Judge Cunningham after a Court of Appeals (COA) decision in early August that rendered the existing injunction on the 1931 ban only applicable to state law enforcement, not local prosecutors. Quickly following the COA decision, Judge Cunningham granted Governor Whitmer’s request for a temporary restraining order on county prosecutors and called for another hearing on August 17 to review the injunction.

The decision on August 19 reinstates the injunction until after the November 8 election when voters will potentially have the opportunity to vote on a ballot proposal that will enshrine some level of abortion rights in the state Constitution. The court set a pre-trial conference for 9:30 a.m. on November 21.

At this time, any further legal action regarding the constitutionality of abortion would stem from the Michigan Supreme Court; however, it remains unclear as to whether the court will choose to act before the election.

Following the ruling, Governor Whitmer issued a statement saying, “I am grateful for this ruling that will protect women and ensure nurses and doctors can keep caring for their patients without fear of prosecution…” Right to Life of Michigan took to social media to say: “Governor Whitmer is bringing this case because they have never had the votes to change Michigan’s abortion law and doubt they will have the votes in November to add abortion into our constitution. She doesn’t really believe in democracy.”

On Friday, July 29, Court of Claims Judge Douglas Shapiro granted a stay of his ruling in Mothering Justice vs. Dana Nessel until February 2023.

The decision in Mothering – issued on July 19 – found that the Legislature violated the constitution when in 2018 it amended two citizen initiatives. One initiative would raise the minimum wage to $12 per hour over a period of years with an inflation adjustment in place once the maximum was reached. It would also eliminate the lower tipped minimum wage. A separate initiative would allow employees to earn one hour of paid sick leave for every 30 hours worked up to a maximum of 72 hours per year.

The purpose of the stay granted by Judge Shapiro is to give employers time to implement the necessary changes to comply with the new laws.

Michigan continues to grapple with the new reproductive health landscape in the wake of the U.S. Supreme Court’s overturning of Roe vs. Wade and Planned Parenthood vs. Casey.

Most recently, on July 29, Court of Claims Judge Elizabeth Gleicher, who issued the injunction temporarily blocking the state’s 1931 abortion ban, denied a motion from Republicans in the Legislature to disqualify her from the case Planned Parenthood vs. Attorney General, challenging the constitutionality of the 1931 law. Concerns from Republicans stemmed from Judge Gleicher’s previous ties to Planned Parenthood and personal campaign contributions to Governor Gretchen Whitmer and Attorney General Dana Nessel.

On Monday, August 1, pro-choice advocates were dealt a temporary blow when the Court of Appeals ruled that the abortion ban does not apply to local county prosecutors (who are not under the jurisdiction of the Michigan Attorney General), potentially opening the door for felony charges to be brought against physicians who perform abortions. Hours later, however, Oakland County Circuit Court Judge Jacob Cunningham granted Governor Gretchen Whitmer’s request for a temporary restraining order to prohibit enforcement of Michigan’s 1931 statute criminalizing abortion. In effect, local county prosecutors remain prohibited from criminally prosecuting abortion in Michigan while the order is pending.

During a hearing on August 3 in the Oakland County Circuit Court, the restraining order was extended and another hearing on August 17 was scheduled. It is possible the order could be extended for an indeterminate period of time. Separately, Governor Gretchen Whitmer’s newest filing calls on the Supreme Court to immediately consider the April lawsuit which asked the court to decide if the state’s constitution protects the right to abortion.