Updates About Lower Court Rulings

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.

On July 19, Court of Claims Judge Douglas Shapiro ruled in Mothering Justice vs. Dana Nessel that the Legislature violated the Michigan 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.

Prior to the 2018 election, the Republican-led legislature took up and passed the two ballot proposals, thus preventing them from going before voters. After the election, the Legislature then voted to amend the ballot proposals, effectively limiting the pool of employers subject to the law to those with 50 or more employees and reducing the sick time hours that could be earned.

The judge ruled that nothing in the Michigan Constitution empowers the Legislature to adopt and amend an initiative petition in the same legislative session, and that doing so effectively undermines the ability of voters to decide.

Michigan Attorney General Dana Nessel and other groups like the AFL-CIO praised the order. While several groups from the business community, including the Michigan Chamber of Commerce and the Michigan Restaurant and Lodging Association, warned the ruling could have a crippling effect on employers and employees.

A stay is expected to be filed. Business groups may also choose to appeal.

On Wednesday, July 6, Michigan’s Republican-led Legislature appealed a Michigan Court of Claims temporary injunction, which stopped enforcement of a 1931 law that outlaws abortion under nearly any circumstance.

Following the overturning of Roe vs. Wade, the state courts’ jurisdiction over the constitutional right to an abortion has come into focus for both sides of the debate. The Court of Claims injunction, which came at the request of Planned Parenthood, cited a “substantial likelihood” that the 1931 law violates the due process clause of the Michigan constitution. It was praised by abortion rights groups and elected officials, including Governor Gretchen Whitmer.

The Legislature references the U.S. Supreme Court’s decision Dobbs vs. Jackson Women’s Health to support its argument, and in doing so underscores the importance of the democratic process to find common ground on a polarizing issue.

This case is distinct from another suit filed by Right to Life Michigan and Michigan Catholic Conference. It is also distinct from an executive message filed by Governor Gretchen Whitmer requesting the Michigan Supreme Court immediately resolve the question of whether Michigan’s Constitution protects a woman’s right to an abortion. It is probable that the constitutionality of abortion rights will ultimately make its way to the Michigan Supreme Court.