Computer tablet displaying the word "Abortion" with a stethoscope draped over the corner

Michigan Court of Claims declares abortion ban unconstitutional

© iStock - Zerbor
Scott McClallen

(The Center Square) –Michigan Court of Claims Judge Elizabeth Gleicher ruled the state’s 1931 law that bans abortion, triggered by the U.S. Supreme Court overturning the landmark 1973 Roe v. Wade decision, is unconstitutional.

Gleicher said the law violates the Michigan Constitution’s Due Process and Equal Protection Clauses.

“Despite that men play [a] necessary role in the procreative process, the law deprives only women of their ability to thrive as contributing participants in [the] world outside the home and as parents of wanted children," Gleicher wrote.

Gleicher’s injunction didn’t bar prosecutors from filing criminal abortion charges but instead told Attorney General Dana Nessel to advise Michigan county prosecutors that abortion is still legal.

Gleicher's ruling replaced a May preliminary injunction with a permanent ruling preventing Nessel from enforcing the law. Nessel has vowed she won’t enforce the abortion law.

Attorney David Kallman, who represents Jackson County Prosecutor Jerard Jarzynka and Kent County Prosecutor Chris Becker, says that a Court of Claims judge has no authority over local county officials such as prosecutors.

“Until it gets appealed up to and either the Court of Appeals or the Supreme Court issues a ruling, it is not binding statewide” Kallman said of the ruling’s impact on county prosecutors.

Four separate lawsuits over the legality of abortion in Michigan are in the legal system. The state’s top court hasn’t yet ruled on it.

Gov. Gretchen Whitmer welcomed the ruling.

“This decision is likely to be challenged, and we know that there’s a group of extremists who will stop at nothing to ban abortion even in cases of rape and incest," Whitmer said in a statement. "With our rights still hanging by a thread, the Michigan Supreme Court needs to provide certainty and rule on my lawsuit to protect the right to abortion in the state constitution."

In April, Planned Parenthood of Michigan sued Nessel to strike the 1931 law. Michigan GOP lawmakers allocated $750,000 to defend the law's constitutionality.

Separately, the MSC is expected to rule soon whether it will place an abortion rights proposal on the Nov. 8 ballot after the Michigan Board of State Canvassers deadlocked 2-2. GOP canvassers said that a line of the proposal appears to be missing spaces. The proposal aims to ask voters if they want to enshrine abortion rights into the state Constitution.

Nessel urged the top court to add the Reproductive Freedom For All proposal to the ballot.

“An overwhelming number of Michigan residents signed petitions in support of placing the question of abortion access on the ballot in November,” Nessel said in a statement. “Our state constitution provides the people with direct access to the democratic process and that access should not be limited by appointed individuals acting beyond the scope and authority of their duty.”