In a Matter of Just Hours, Michigan's Pre-Roe Abortion Law Could, Then Couldn't, Be Enforced

As you may recall, the American Center for Law & Justice (ACLJ) filed a pair of amicus curiae (friend-of-the-court) briefs in the Michigan Supreme Court concerning the state’s abortion statute.

In a flurry of court proceedings on August 1, 2022, one court permitted Michigan County Prosecutors to enforce Michigan’s pre-Roe anti-abortion law and then another court prevented enforcement. This is part of the ongoing post-Dobbs struggle in Michigan (as it is also occurring in other states) to determine how it will handle the issue of abortion now that the issue has returned to the states to decide.

This past April, before the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, two lawsuits were filed in Michigan state courts. One was filed by Planned Parenthood against the Michigan attorney general, and the other was filed by Michigan Governor Gretchen Whitmer against 13 county prosecutors in those counties where abortions are performed. Both lawsuits have the same goal of trying to invalidate a 1931 state law (Section 750.14) that prevents abortion unless it is necessary to preserve the life of the mother. That law had not been enforced since Roe was issued, but could go back into effect now that Roe has been overturned.

The Planned Parenthood lawsuit was filed in the Michigan Court of Claims, which is the court that hears lawsuits against the state. There, before the Dobbs decision was released, the Court of Claims entered a preliminary injunction preventing the attorney general from enforcing Section 750.14. (There were some who questioned whether the injunction also applied to the county prosecutors, since the Attorney General “supervises” them under Michigan law.)

Governor Whitmer’s lawsuit was filed in the Oakland County Circuit Court, but the governor immediately asked the Michigan Supreme Court to resolve the key questions in the case in the first instance. She asked the Supreme Court to determine whether Section 750.14 is invalid and whether there is a constitutional right to abortion in Michigan before the trial court even considered the case.

The ACLJ submitted two amicus curiae briefs with the Michigan Supreme Court, arguing against Governor Whitmer’s position. Both briefs were filed before the Dobbs decision was released. The case is still pending in the Michigan Supreme Court.

In our first amicus curiae brief, we argued that the governor’s case should be dismissed. We explained that the Michigan Court of Appeals had previously determined that there is no right to abortion in the Michigan Constitution and that the governor lacks authority to prevent the County Prosecutors from enforcing Section 750.14, if and when that law goes back into effect. County prosecutors are elected officials and have discretion to decide whether to institute a prosecution; the governor cannot dictate how they exercise their discretion.

In our second amicus curiae brief, filed at the invitation of the Michigan Supreme Court, we explained that the governor is seeking to create an absolute constitutional abortion right in Michigan through her lawsuit that far exceeds the federal Roe-based abortion right. Her unprecedented proposed revision of the Michigan Constitution, however, can only occur, if it occurs at all, through the constitutional amendment process, not through the amendment-by-litigation strategy that her lawsuit represents.

We pointed out that if the federally recognized right to an abortion is overturned by Dobbs—which, as we told you, it subsequently was—the authority to regulate abortion would return to the states, where it rested before Roe was released in 1973. The policy arguments that the governor asserts in her lawsuit should be presented to the proper audience: the legislature and the public at large. The democratic process should decide whether any changes should occur to Michigan’s prohibition of abortion. Those changes should not be forced on the public through the governor’s lawsuit.

While the Michigan Supreme Court has been considering Governor Whitmer's lawsuit, a motion was filed in the Michigan Court of Appeals regarding Planned Parenthood’s separate lawsuit that originated in the Court of Claims. The motion was filed by non-parties to the lawsuit because the attorney general did not appeal the decision to the appellate court. (The attorney general did not even defend against the lawsuit in the Court of Claims and has stated that she will not enforce Section 750.14.)

Although the non-party motion was ultimately dismissed for lack of standing, the appellate court did clarify the extent of the injunction against the attorney general with regard to county prosecutors. On August 1st, the appellate court ruled that the injunction only applies to the attorney general and not to the county prosecutors. Although the attorney general may “supervise” the county prosecutors under Michigan law, the attorney general does not “control” the county prosecutors in how they exercise their discretion regarding prosecutions. In short, under the appellate court’s decision, county prosecutors could enforce Section 750.14 in their respective counties should abortions be performed in violation of that criminal statute.

Immediately, however, after the appellate court’s ruling, the governor moved the Oakland County Circuit Court, where she filed her lawsuit against the county prosecutors, for an emergency injunction to prevent the prosecutors from enforcing Section 750.14. Within hours of the appellate court’s ruling, the trial court granted the motion and enjoined the prosecutors from enforcing the law. (Although the injunction applies only to 13 of the 83 county prosecutors in the state, it is unlikely there will be prosecutions in the remaining 70 counties as abortions generally occur in the 13 counties that are under the injunction.)

For now, this is the status of Michigan’s abortion law, post-Dobbs, unless changed by a court, especially with regard to the injunctions against the attorney general and the county prosecutors, or through the democratic process.

The Michigan Supreme Court has yet to indicate whether it will decide the key questions in the governor’s lawsuit, that is, whether Section 750.14 is invalid and whether there is a right to abortion in the Michigan Constitution. The Court may decide these questions at any time or it may wait until the election this November. On the ballot for the November election will likely be a pro-abortion proposal to amend the Michigan Constitution and legalize abortion. The proposal has received enough signatures, which are currently being verified by the Bureau of Elections and validated by the Board of State Canvassers. Whether the proposal will make it onto the November ballot will be known in the coming weeks.

This pro-abortion proposal is being challenged by a coalition of pro-life groups called Citizens to Support MI Women and Children. The coalition, among other things, has been working to educate the public about this proposal in order to defeat it on Election Day. The coalition has explained that the proposal, if passed as a constitutional amendment, “would repeal dozens of state laws, including [Michigan’s] ban on tax-funded abortions, the partial-birth abortion ban, and fundamentally alter the parent-child relationship by preventing parents from having input on their children’s health.”

We will continue to update you about post-Dobbs matters in Michigan and other states now that the United States Supreme Court has returned the abortion issue to the states for resolution.

UPDATE 8.16.2022: As noted in the above post, a coalition of pro-life groups, Citizens to Support MI Women and Children, is challenging the pro-abortion ballot proposal. Today, the coalition notified the Board of State Canvassers that there are 43 serious errors in the proposal's language and, as a result, the proposal should be rejected and not be included on the November election ballot. The Board is expected to determine on August 31st whether the proposal should be certified for the November ballot.