Last week, Judge Elizabeth Gleicher ruled in favor of Planned Parenthood with regards to Michigan's state abortion ban, which would go back into effect should the U.S. Supreme Court rule to overturn Roe v. Wade. Judge Gleicher's decision comes not only as the Supreme Court does indeed look to be going in that direction, but after she had previously represented the abortion provider and continues to make donations. Dave Boucher, who has covered the case for Detroit Free Press, noted that Gleicher was "randomly" assigned the case.
The law, from 1931, would ban abortions in Michigan, except to save the life of the mother.
According to the injunction issued last Tuesday by Judge Gleicher, Planned Parenthood is likely to prevail in arguing that the abortion ban violates the state constitution.
As Boucher and Paul Egan wrote for Detroit Free Press in summarizing the decision:
A Michigan law from 1931 includes two key components: one makes any abortion a felony unless it is done to protect the life of the pregnant person. The second also criminalizes selling or advertising medications that could induce an abortion.
Under Tuesday's ruling, the state could not enforce the 1931 law should Roe v. Wade be struck down.
The 1931 law "criminalizes virtually all abortions, and if enforced, will abruptly and completely end the availability of abortion services in Michigan," Gleicher wrote.
"A preliminary injunction furthers the public interest, allowing the court to make a full ruling on the merits of the case without subjecting plaintiff and their patients to the impact of a total ban on abortion services in the state."
Gleicher found that abortion rights are almost certainly protected under due process provisions in the Michigan Constitution that protect bodily integrity.
"After 50 years of legal abortion in Michigan, there can be no doubt that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy," Gleicher wrote.
The Detroit Free Press first reported on a letter indicating that Judge Gleicher "makes yearly contributions to Planned Parenthood of Michigan" and also "represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997."
Further complicating the law's future is the insistence from Michigan's Attorney General Dana Nessel, a pro-abortion Democrat, that she will not enforce the law, as Madeline has covered. Nessel has also refused to appeal Judge Gleicher's decision. She also had indicated that she wouldn't spend state resources defending the law.
It was as if the state law had no one defending it, then.
In a blog post from April 18, Jonathan Turley wrote that "not only will no party challenge Judge Gleicher, but there is currently no party willing to zealously defend the law."
He also emphasized throughout his piece that Nessel ought to have appointed outside counsel. "Nessel has an obligation to at least appoint outside counsel to defend the law," he wrote.
"Even if Gleicher will not recuse herself, Nessel needs to show a modicum of principle and appoint someone who will defend this law and independently decide whether to file a motion for disqualification," he also mentioned as his closing.
Though he did not question Gleicher's belief that she could rule fairly, Turley did also write that "Judge Gleicher should see the obvious appearance of a conflict given her contributions and history. She should recuse herself in my view."
There is, in a way, someone defending the law though. Boucher reported this morning that "Michigan conservative activists want Court of Appeals to overturn abortion law injunction." Those groups, which filed their request on Friday, include Michigan Right to Life, the Michigan Catholic Conference and local prosecutors.
Boucher notes that they're represented by the Great Lakes Legal Center, which is also opposing Gov. Gretchen Whitmer's (D-MI) lawsuit that also seeks to nullify the state's abortion ban.
He had some rather interesting notes about Whitmer's lawsuit as well:
...In Whitmer's lawsuit, she's leaning on a little-used power to ask the state's high court to immediately take up her case and determine there is a state constitutional right to abortion.
On Friday, the Michigan Supreme Court asked Whitmer's legal team to answer five key procedural questions in her case. That included whether the state court should wait until the U.S. Supreme Court issues its own abortion ruling and if Gleicher's injunction means the state Supreme Court does not need to immediately rule in Whitmer's case.
Whitmer's team has two weeks to respond to the court's request.
Another recent abortion case comes out of Kentucky last week as well. Last month, Judge U.S. District Judge Rebecca Grady Jennings, a Trump appointee, had issued a temporary restraining order (TRO) against a state law that would effectively end abortion in the commonwealth, since abortion providers could not or would not comply. Jennings has since extended that order.
Tessa Redmond from Kentucky Today noted that Jennings issued a stay on the provision of the law banning abortions past 15 weeks until the U.S. Supreme Court issues a ruling in Dobbs v. Jackson. A leaked draft opinion shows that the Court is looking to overturn Roe v. Wade.
We immediately filed a notice of appeal with the U.S. Court of Appeals and will take every available measure to continue defending this important law, which protects unborn life and women’s health. (2/2)
— Attorney General Daniel Cameron (@kyoag) May 19, 2022
Unlike in Michigan, Kentucky has a pro-life attorney general, Daniel Cameron, who indicated he will appeal the decision.
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