By Anna Visser, Right to Life of Michigan Director of Communication/Education

Two separate lawsuits filed by Planned Parenthood and Governor Whitmer respectively were filed on the exact same day, April 7, 2022.  Both lawsuits asked the court for essentially the same relief – stop our abortion law from being enforced, and “discover” a right to abortion in the Michigan Constitution.

Planned Parenthood’s Lawsuit

The lawsuit filed by Planned Parenthood sued the Attorney General (Dana Nessel) in her official capacity as the State’s chief law enforcement agent.  The suit was filed in a specialty court known as the Court of Claims. This court is designed only for lawsuits involving state employees and agents. The judge of the Court of Claims is randomly assigned from a pool of Court of Appeals judges who rotate to serve on the Court of Claims.  The judge assigned to this case is none other than former ACLU attorney Elizabeth Gleicher.  Judge Gleicher represented Planned Parenthood as an attorney in several cases including the Court of Appeals case of Mahaffey vs. Attorney General (1997) which declared there is no right to abortion in the Michigan Constitution. In addition, Judge Gleicher is a proud recipient of a Planned Parenthood award and has been a donor for years.

For her part, Dana Nessel refused to defend the state’s abortion law in this lawsuit, and she refused to allow any other assistant attorney general to defend the law.  It is the job and sworn duty of the Attorney General to defend state laws from lawsuits, but she refused. So, that left the Plaintiff, Defendant, and the Judge all on the same page. They all agreed that the abortion law should be blocked and that the Michigan Constitution (despite what the Mahaffey court said) contains a right to abortion that couldn’t be found 28 years ago when Judge Gleicher attempted to get the court to find one but failed.

Right to Life of Michigan along with the Michigan Catholic Conference filed an amicus brief (friend of the court brief) explaining why the lawsuit should be dismissed due to lack of adversity – everyone agreed on the outcome. In these types of cases, courts are supposed to dismiss the case.  In addition, the brief pointed out the obvious conflict of interest with the judge and asked for her to recuse herself.  Lastly, our attorneys pointed to the fact that the Court of Claims is a lower court and is bound by the precedent set forth in the Mahaffey case.  The judge dismissed all these arguments, and without holding any hearings, on May 17th simply issued a preliminary injunction on our abortion law and declared a right to abortion in the Michigan Constitution.

Since we are not a government entity, Right to Life of Michigan is not allowed to intervene in the Court of Claims and therefore couldn’t appeal the ruling. So, our attorneys filed an extraordinary motion with the Court of Appeals known as a Writ of Superintending Control which asks the higher court to take the case away from a rogue judge and deal with it themselves. Planned Parenthood objected to the Superintending Control. In the meantime, the House of Representative and the State Senate filed to intervene as defendants in the case. Since they are a government entity, they were granted intervenor status.  Because they would provide defense and the necessary adversity needed, Planned Parenthood then claimed that the Writ of Superintending Control should be dismissed because there is a party to the case who can appeal the decision.

In the wake of the Dobbs decision, on June 29th Planned Parenthood filed a motion for summary disposition which asks the judge to make her injunction permanent.  Judge Gleicher has granted them an expedited hearing.  The Legislature vigorously defended the abortion law and also filed with the Court of Appeals supporting the Writ of Superintending Control motion.  The Court of Appeals asked for briefing (more data) on why they should take Superintending Control instead of allowing the Legislature to simply file for an appeal. Our attorneys, joined by the attorneys for two prolife prosecutors have filed a brief to support their position.

Governor Whitmer’s Lawsuit

While the Court of Claims case has been very active with many motions and briefs filed, the Governor’s case has been on hold.

The Governor filed originally in the Oakland County Circuit Court, and she named 13 prosecuting attorneys as the defendants. The 13 prosecutors are those who have an abortion clinic in their county and could presumably prosecute an abortionist for the crime of abortion when Roe was overturned, and our abortion law was allowed to go back into full effect.  She chose Oakland County because it is home to one of the named prosecutors and may have an abortion friendly judge. The Governor, however, simultaneously filed an “Executive Message” to the Michigan Supreme Court asking the highest court to reach down and take the case directly from the Oakland County Circuit Court and leapfrog over the lower courts.

Right to Life of Michigan and the Michigan Catholic Conference filed to intervene as a party to the Governor’s case in both the Oakland County Circuit Court and the Michigan Supreme Court.  In addition, two prolife county prosecutors who were named as defendants in the case filed their response to the lawsuit asking the court to dismiss the case.

After the Dobbs decision was handed down, Governor Whitmer filed another motion with the Michigan Supreme Court asking for immediate consideration of her “Executive Message” to take up the case she filed against the county prosecutors.  The Supreme Court has yet to decide whether they will hear the case or allow it to go through the normal judicial process.

This blog post will be updated frequently to reflect the most recent status of each lawsuit. 

Background Information:

Governor Whitmer Lawsuit: Press Release

Planned Parenthood Lawsuit: Press Release