Michigan Legal System in Disarray After Roe v. Wade Decision

Michigan Legal System in Disarray After Roe v. Wade Decision
A protester holds the torch from Lady Liberty alongside other pro-abortion protesters gathered outside the U.S. Courthouse in downtown Los Angeles, Calif., on May 3, 2022. (Frederic J. Brown/AFP via Getty Images)
Steven Kovac

Judge Elizabeth Gleicher, a Democrat appointee and Planned Parenthood donor, is the presiding judge in a case brought by the non-profit organization and an abortion provider against the state of Michigan that could keep performing abortions legal.

The case before Gleicher seeks to establish that abortion is a right implied in the state constitution, and therefore a 1931 state law still on the books that made performing an abortion a felony (except to save the life of the mother) is unenforceable.

In 1996, Gleicher, as an American Civil Liberties Union lawyer argued unsuccessfully in a losing case before the Michigan Court of Appeals for abortion as a state constitutional right—the same point of law she is now being called upon to decide as a judge.

Attorney General Dana Nessel. (Office of the Attorney General of Michigan)
Attorney General Dana Nessel. (Office of the Attorney General of Michigan)

In its 1997 decision in Mahaffey v. Attorney General, the appeals court stated in part, “… we cannot conclude that the intent of the people that adopted the 1963 constitution was to establish a constitutional right to abortion.”

The appeals court noted abortion was a criminal offense at the time the Constitution was written and had been for 32 years.

The ruling said, “An examination of Michigan Supreme Court precedent also leads to the conclusion that there is no right to abortion under the Michigan Constitution.”

Until the appeals court ruling is overturned, it is the guiding principle for cases in all state jurisdictions.

Had Gleicher prevailed, the Mahaffey case would have effectively done away with Michigan’s Informed Consent Law, which requires ultrasound images to be shown to the mother of the child before an abortion procedure, and the legally mandated 24-hour waiting period.

Gleicher, who has been transparent about her donations to Planned Parenthood and her representing pro-abortion causes in the past, can under Michigan judicial rules have her impartiality challenged by the defendant in the case.

The defendant is the State of Michigan, which is being represented by the office of Attorney General Dana Nessel, a Democrat, who has repeatedly publicly declared that her office will not enforce the revived 1931 law.

Nessel, who is seeking a second term in this fall’s general election, did not question Gleicher’s ability to be impartial.

She has repeatedly stated that the attorney general’s office is operating under the status quo prior to the U.S. Supreme Court’s overturning of Roe v. Wade on June 24 and that she would not enforce the statute she is now being called upon to defend.

On May 17, 2022, Gleicher issued a 27-page preliminary injunction temporarily banning enforcement of the state’s 1931 abortion law to prevent harm to the plaintiffs until their case is tried on its merits and decided.

“Defendant Attorney General concurs with the plaintiff’s argument that the (1931 law) is unconstitutional,” noted Gleicher in her order.

In the injunction, Gleicher also laid out the case that the 1931 law violates guarantees implied in the Michigan constitution protecting “liberty, the individual’s right to bodily integrity, the right to be left alone, bodily autonomy, equal protection, due process, and privacy” in connection with abortion.

“Forced pregnancy, and the concomitant compulsion to endure medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions,” wrote Gleicher.

This spring Michigan governor Gretchen Whitmer, a first-term Democrat seeking reelection in November, filed a lawsuit against 13 county prosecutors serving in the 13 counties in Michigan which have an abortion clinic, to prevent them from enforcing the 1931 abortion statute.

Michigan Gov. Gretchen Whitmer addresses the state during a speech in Lansing on April 13, 2020. (Michigan Office of the Governor via AP, Pool)
Michigan Gov. Gretchen Whitmer addresses the state during a speech in Lansing on April 13, 2020. (Michigan Office of the Governor via AP, Pool)

Two Republican prosecuting attorneys represented by attorney David Kallman of the Great Lakes Justice Center contend that the injunction preventing them from enforcing an existing state law is an undue interference with their prosecutorial discretion and would keep them from doing their sworn duty.

Kallman told The Epoch Times, “The court of claims case is a sham. Ms. Nessel must be recused.”

One of the Republican prosecutors Whitmer is suing, Jerry Jarzynka, of Jackson County, told The Epoch Times, “I believe we have righteousness on our side. I feel passionate about defending a prosecutor’s broad discretion over when and when not to bring charges.”

The 1931 law carries a penalty of up to four years in prison for any doctor who performs an abortion that is not necessitated by saving the life of the mother.

“It also outlaws the advertisement and sale of any fluid, powder, or pill designed to induce an abortion.

Jarzynka and Kent County prosecutor Chris Becker, a Republican, have challenged Gleicher’s injunction in court, as have some Republican state legislators.

On April 7, 2022, Whitmer used an executive prerogative to ask the Michigan Supreme Court for an expedited ruling declaring that abortion is a state constitutional right.

She renewed that call on June 24 and pressed it again on June 27, citing “uncertainty” and “confusion” in Michigan’s legal system and among abortion providers and hospital groups.

The Michigan Supreme Court has not, to date, agreed to hear the case.

Steven Kovac reports for The Epoch Times from Michigan. He is a general news reporter who has covered topics related to rising consumer prices to election security issues. He can be reached at [email protected]