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Michigan judge temporarily halts abortion ban -- What does it mean?

AG Dana Nessel said she will not appeal judge's order; Pro-life groups plan on pursuing legal action
Posted at 6:57 PM, May 18, 2022
and last updated 2022-05-18 18:58:28-04

GRAND RAPIDS, Mich. — Pro-Choice advocates got a big win Tuesday when a Michigan Judge put a halt on the 1931 law that bans abortions in the state.

However, that win is only temporary.

Judge Elizabeth Gleicher issued a preliminary injunction, which blocked a 1931 law — that criminalized abortions — from taking effect should Roe vs. Wade be overturned. On May 2, Politico reported that a draft opinion of the Supreme Court would lead to the historic 1973 ruling being repealed.

"The court is essentially saying that this particular law will likely be found Unconstitutional," said attorney Kirsten Holz of Levine and Levine. "And that it isn’t to say that it extends to all abortions laws, but just this once specific 1931 statue relating to abortion."

Michigan was one of over a dozen states that had trigger laws in place that would immediately make abortions illegal if the historic ruling gets overturned. In April both Gov. Gretchen Whitmer and Planned Parenthood filed lawsuits to keep abortions legal. Tuesday's ruling now allows for abortions to continue while Planned Parenthood's case proceeds in Michigan.

The outcome of the Gov. Whitmer's case has yet to be determined.

"There's always a possibility that the parties of the case can appeal a courts decision," said Bonsitu Kitaba, deputy legal director of the ACLU of Michigan. "Right now, the attorney general has expressed publicly that she has no intention to appeal the preliminary injunction and she the only defendant currently in the case."

Since the ruling came down, opponents of Judge Gleicher have called into question her previous donations , saying that they present a conflict of interest.

"Judge Gleicher disclosed early on to all the parties that she had contributed to Planned Parenthood and represented Planned Parenthood while she was a lawyer," Kitaba said. "And that is not grounds for recusal in this case. None of the parties have raised that as a grounds for her to recuse herself. And the time for challenging that has already lapsed."

Holz agreed. She said her donations should be considered "immaterial."

"If we start looking at who donated to what organization it takes the focus from the impartiality of judges, which is the cornerstone of the judiciary, and starts focusing on what people might believe when they take off that robe," Holz said. "But this judge is known to be a fantastic jurist, very experienced, very thoughtful."

However, pro-Life groups are making efforts to block her ruling.

That includes Right to Life of Michigan, whose legal counsel — Alliance Defending Freedom — called Tuesday's move a "rogue decision."

In a statement sent to FOX 17 Wednesday, John Bursch, ADF's Senior Counsel and VP of Appellate Advocacy, had this to say:

"The court’s ruling is egregious for many reasons. Because the defendant, Michigan Attorney General Dana Nessel, was not defending the law, the judge had no jurisdiction to rule in this case at all. What’s more, the Michigan Court of Appeals previously held that the same pro-life law is valid under Michigan’s Constitution—in a case where Planned Parenthood was represented by the same judge who issued today’s ruling. Michigan citizens are entitled to neutral decision makers, and government officials have a duty to uphold the law and protect their citizens, including unborn children. Right to Life of Michigan and the Michigan Catholic Conference are considering their next steps."

During a phone conference with the media on Tuesday, Bursch added, “This is the kind of mess that you end up with in the court system when the state chief executive, and its attorney general, refuse to uphold and defend the law that’s been in place since 1931. They may not like it, but no one has the ability to unilaterally ignore change and encourage the invalidation of Michigan law. They should be working through the democratic process just like everybody else.”

Bursch said ADF is figuring out the next legal steps to take in this process, and promised something will be pursued. He expects those plans to be announced later this week.

Meantime, Pro-Choice advocates are hoping to continue their momentum as the Supreme Court gets close to making their decision at the federal level.

A group called Reproductive Freedom for All created an initiative to preserve access to abortion. They need about 425,000 to get that initiative on the November ballot.

Both attorneys say Tuesday was a victory but the fight is far from over.

"We are going to continue litigating this case to ensure the 1931 law is permanently enjoined, that it is stuck down as unconstitutional and that the court acknowledges that there is a right to abortion under our state constitution," Kitaba said. "That's the ultimate goal. That's what we’re all working towards."

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