Michigan conservative activists want Court of Appeals to overturn abortion law injunction

Anti-abortion rights activists and conservative lawyers are asking the Michigan Court of Appeals to overrule a lower court's decision that sought to temporarily block a state law criminalizing most abortions if the U.S. Supreme Court overturns Roe v. Wade. 

The request, filed late Friday, comes from Michigan Right to Life, the Michigan Catholic Conference and a pair of local prosecutors. Right to Life and the conference are represented by former Michigan solicitor general John Bursch, who now works with a national conservative organization called the Alliance Defending Freedom.

Prosecutors from Jackson and Kent counties are represented by the conservative Great Lakes Legal Center, the same organization that is opposing Gov. Gretchen Whitmer's lawsuit that also seeks to nullify the state's abortion ban. 

“Courts must not facilitate the abuse of using fake lawsuits with no adverse parties to overturn duly enacted legislation with which the governor or attorney general personally disagree," said David Kallman, senior legal counsel with the center. 

"This abuse of power must be stopped now. The judiciary must immediately intervene to re-establish the rule of law.”

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The filing comes one week after Court of Claims Judge Elizabeth Gleicher agreed Planned Parenthood of Michigan was likely to win in a lawsuit filed against Michigan Attorney General Dana Nessel. The lawsuit argues the 1931 state law that criminalizes all abortions except those performed to save the life of a pregnant person violates the Michigan Constitution, and that the state constitution already guarantees the right to an abortion. 

Gleicher issued a preliminary injunction in the case, a move she said prevents prosecutors from charging anyone with violating that law if the U.S. Supreme Court determines there is not a national, constitutional right to abortion. The court is expected to overturn the 1973 ruling in Roe as soon as this week. 

Because Nessel already vowed not to fight Planned Parenthood or Gleicher's decision, the conservative coalition says they have a duty to intervene on behalf of the state and defend the law that's still on the books. 

"The attorney general, who already declined to file a motion to dismiss or file a brief opposing the requested preliminary injunction on the merits, now cheers her own defeat and the Court of Claims’ purported injunction," reads a portion of the center's filing with the court of appeals.

"Not surprisingly, she now refuses to appeal. In short, this Court of Claims action has become a runaway train and only this court can apply the brakes."

The center requests the Court of Appeals to essentially allow it to serve as the state and appeal Gleicher's injunction. The conservative coalition also wants the higher court to overturn the injunction, arguing it ignored previous precedent and judicial norms. The request indicates a June 7 deadline to appeal Gleicher's ruling, asking the Court of Appeals to quickly rule on the request. 

Nessel previously said she would not oppose a motion to intervene from the Michigan Legislature. Representatives from her office and Planned Parenthood did not immediately respond to requests for comment Monday. 

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The filing from the conservative coalition also notes the Michigan Court of Appeals already determined in the late 1990s that the state constitution does not guarantee any right to an abortion. The ruling, in Mahaffey v. Attorney General, is consistently cited by anti-abortion rights activists who argue a Michigan court already denied requests from Planned Parenthood and Whitmer. 

But abortion rights advocates point out the Michigan Supreme Court never ruled on the state constitutionality of abortion. 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. 

Contact Dave Boucher at dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.