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Appeals Court rejects Michigan’s legislature’s bid to overturn abortion ban injunction

by | Aug 25, 2022

By Dave Andrusko

The Michigan Court of Appeals on Wednesday chose not to take up an appeal from the Michigan Legislature to overturn Court of Claims Judge Elizabeth Gleicher’s preliminary injunction that’s stopping the enforcement of the state’s 1931 abortion ban. 

“The judges denied the GOP-led Legislature’s appeal because they weren’t persuaded that the issue needed an immediate appellate review, according to a brief order issued Wednesday,” Beth LeBlanc reported for The Detroit News.

On July 6, the lawmakers asked the three-judge panel to weigh in after Gleicher “rejected lawmakers’ request that she reverse the May preliminary injunction she issued stopping enforcement of the state’s abortion law.” 

Gleicher – who said she made annual donations to Planned Parenthood – was assigned to the case. 

“In May, she issued a temporary injunction prohibiting enforcement of the 1931 law, arguing that Planned Parenthood had a reasonable chance of winning its case,” LeBlanc wrote. “Although the Michigan legislature attempted to secure Judge Gleicher’s recusal from the case on the grounds that she could not be impartial in a case concerning an organization she obviously supported, she refused, saying the legislature’s argument “border[ed] on frivolous.”

LeBlanc wrote, “Around the same time, two county prosecutors objected to Gleicher’s ruling and in early August a Court of Appeals panel ruled the prosecutors were not bound by Gleicher’s ruling because the order applied only to state actors,” 

The decision set off a scramble that left state officials turning to a separate case filed by Gov. Gretchen Whitmer in early April that had been largely inactive while the Planned Parenthood case proceeded. 

Whitmer’s suit also argues there is a constitutional right to abortion, but it was filed against 13 county prosecutors making it the better vehicle to stop prosecutors from enforcing the ban. 

Oakland County Circuit Judge Jacob Cunningham issued a temporary restraining order and, later, a preliminary injunction in Whitmer’s case this month, stopping the 13 prosecutors from enforcing the law. 

Gov. Whitmer also has asked Michigan Supreme Court to intervene. LeBlanc wrote

But so far the high court has remained mum, except to ask a few more questions and accept amicus briefs on the issue. Justice Richard Bernstein said Sunday it was unlikely, with the two preliminary injunctions in place, that the court would depart from its normal process. 

But Bernstein argued the Michigan Supreme Court will be the final arbiter on abortion rights in Michigan, whether through the currently pending cases or through interpretation of a ballot initiative seeking to establish a right to abortion in the Michigan Constitution. 

“Ultimately, it is the Michigan Supreme Court that will make the absolute final determination, it will be the Michigan Supreme Court that will have the final word in a woman’s right to choose in the state of Michigan,” Bernstein said Sunday. 

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