The Supreme Court of the United States ruled on Dobbs v Jackson Women’s Health Org, No 19-1392, ___ US ___ (June 24, 2022), rev’g and remanding 45 F3d 265 (5th Cir 2019), aff’g 349 F Supp 3d 536 (SD Miss 2018), in a 5-3-1 decision. The decision overturned Roe v Wade, 410 US 113 (1973), and Planned Parenthood of SE Pennsylvania v Casey, 505 US 833 (1992), holding there is no longer a federal constitutional right to an abortion. The authority to regulate abortions is now determined by states. Litigation has ensued in Michigan regarding access to abortion post-Dobbs.
Michigan has a 1931 abortion ban. See MCL 750.14–.15. The statute allows abortions only when necessary to preserve the life of the pregnant woman and does not allow exceptions for cases of rape or incest. Litigation has ensued regarding the legal status of this ban and access to abortion in Michigan post-Dobbs.
Legal Status of 1931 Ban
- May 2022: A Michigan Court of Claims order issued a temporary injunction blocking enforcement of the 1931 ban.
- August 2022: The court of appeals issued an order on August 1, 2022, stating that the court of claims preliminary injunction does not apply to county prosecutors.
- September 2022: Judge Elizabeth Gleicher of the court of claims struck down Michigan’s 1931 antiabortion law on September 7, 2022, finding that the law violates the Michigan Constitution. The injunction includes instructions for Attorney General Dana Nessel to advise Michigan prosecutors that the law is unconstitutional. Meanwhile, the court of appeals August 1 order is being appealed to the Michigan Supreme Court.
Gubernatorial Litigation Regarding Enforcement of the 1931 Ban
On August 1, 2022, a temporary restraining order was granted by the Oakland County Circuit Court in Whitmer v Linderman, No 22-193498-CZ (Oakland Cty Cir Ct Aug 1, 2022). Plaintiff, Governor Gretchen Whitmer, sought a temporary restraining order prohibiting defendants, 13 county prosecutors, from enforcing MCL 750.14, which bans the majority of abortions in Michigan. Defendants made public statements that they would consider cases against abortion providers brought to them by law enforcement. Defendants were ordered to refrain from enforcing MCL 750.14 until further order of the court. The order was extended by two weeks during a hearing on August 4, 2022.
On August 19, 2022, the preliminary injunction was granted following a two-day hearing. Oakland County Judge Jacob Cunningham stated that plaintiffs proved that Michigan’s 1931 abortion ban was dangerous and presented a constitutional crisis, noting everyone in the state “individually and collectively” is harmed by the law and would be harmed if the preliminary injunction was not granted. The preliminary injunction blocks county prosecutors from prosecuting abortion care providers and individuals receiving abortion care. However, the preliminary injunction is a temporary decision, and a pretrial is scheduled for November 21, 2022.
On September 8, 2022, the Michigan Supreme Court directed the Board of State Canvassers to certify an abortion rights ballot proposal for the 2022 Michigan general election. See Reproductive Freedom for All v Board of State Canvassers, No 164760, ___ Mich ___, ___ NW2d ___ (Sept 8, 2022).
Abortion Access for Minors
The court of appeals issued an order in In re AST, No 362349, ___ Mich App ___, ___ NW2d ___ (July 29, 2022), interpreting the Parental Rights Restoration Act, MCL 722.901 et seq., under which minors may seek waiver of parental consent to abortion.