GOP-led Michigan Legislature calls abortion a ‘medically unnecessary procedure’ in injunction appeal

Preliminary injunction currently blocks enforcement of state’s abortion ban after Roe overturned

FILE - A woman supporting abortion-rights holds a sign outside the South Carolina Statehouse on July 7, 2022, in Columbia, S.C. (AP Photo/Meg Kinnard, File) (Meg Kinnard, Copyright 2022 The Associated Press. All rights reserved)

Michigan’s Republican-led Legislature is asking the state Court of Appeals to lift a temporary injunction that is blocking the enforcement of the state’s 1931 abortion ban, keeping abortion legal in Michigan following the overturning of Roe v. Wade.

The GOP-controlled Michigan House and Michigan Senate are intervening as defendants in a lawsuit filed by Planned Parenthood of Michigan and the American Civil Liberties Union. The plaintiffs argue that the 1931 law banning most abortions in Michigan violates the state’s constitution, and residents’ right to abortion access and care.

Michigan’s 1931 abortion ban, which is an updated version of a law that dates back to the 1840s, states that all abortions are felonious and cannot be carried out unless necessary to “preserve” the life of the mother. Some experts argue that “preservation” stipulation is vague and doesn’t cover a range of potentially dangerous circumstances.

The state’s abortion ban is technically in effect following the overturning of the U.S. Supreme Court’s 1973 ruling in Roe v. Wade, which protected the right to an abortion nationwide without excessive government control. The PPMI and ACLU lawsuit was filed in anticipation of Roe being overturned, as states now have authority to regulate abortion care, or ban abortions entirely, within their boundaries.

A Michigan Court of Claims judge sided with PPMI and the ACLU, stating that the right to bodily integrity as outlined in the state’s constitution makes a ban on abortions unconstitutional. Judge Elizabeth Gleicher granted the groups’ motion and instituted a preliminary injunction, preventing the acting state attorney general and “all local officials acting under (their) supervision” from enforcing Michigan’s abortion ban.

As of July 8, Michigan’s 1931 law banning abortions is temporarily blocked and cannot be enforced. Abortion care remains legal for individuals statewide.

In response, the state legislature -- which has blocked moves to overturn the state’s abortion ban throughout the years -- has joined in on the lawsuit in an effort to uphold the law.

The defendants initially filed a motion in June asking the Court of Claims to reconsider the imposed preliminary injunction, but that request was denied. On Wednesday, July 6, the defendants filed for an application for leave to appeal with the Michigan Court of Appeals, a higher court, in hopes of appealing Judge Gleicher’s ruling.

Michigan Attorney General Dana Nessel is also named as a defendant in this lawsuit, but she has stated that she will not enforce Michigan’s abortion ban should it take effect, so she has not appealed Gleicher’s preliminary injunction herself.

In fact, that is one point that state legislators are using against the lawsuit in their defense: the fact that AG Nessel does not intend to fight the lawsuit. The GOP-controlled legislature argues that Nessel has a duty to enforce and uphold the law banning abortions. Nessel has explicitly disagreed with such claims, arguing that former Republican Michigan AGs have refused to enforce certain laws in the past without disapproval from their base.

Related: Abortion migration to Michigan increasing in wake of Roe v. Wade being overturned

In the 46-page application filed Wednesday, the defendants made a number of arguments against the PPMI and ACLU lawsuit, and said the judge’s injunction is an “overreach” of her power. Defendants argued that the case should be dismissed because AG Nessel vowed not to enforce the Michigan abortion ban, the plaintiffs’ claims are allegedly “based on conjecture and hypothetical future harms,” and the plaintiffs (PPMI particularly) don’t have legal standing to represent their patients and potential future patients, the document reads.

The document also referenced how Michigan voters struck down a ballot measure in the 1970s that would have legalized abortions up to 20 weeks gestation.

While arguing against the injunction and the right to abortion care, defendants -- excluding Nessel -- stated that an abortion is a unique and “medically unnecessary procedure.”

“Assuming arguendo that there is a state constitutional right to obtain medical treatment, that right cannot include the right to obtain a medically unnecessary procedure that has the purpose and effect of terminating a developing human life,” the document reads. “(To be clear, Intervenors agree that abortion is permissible when necessary to save the life of the pregnant woman.)”

You can read the legislature’s entire application for leave to appeal below.

In contrast, people who are pro-choice argue that abortion care is not only medically necessary for individuals experiencing dangerous, painful or unwanted circumstances, but that it should remain an option for any pregnant person who does not wish to be pregnant. In her May ruling, Judge Gleicher stated that a person should have the choice to have an abortion as part of their right to bodily integrity.

“Pregnancy and childbirth, particularly if unwanted, transform a woman’s psychological well-being in addition to her body,” Gleicher’s opinion reads. “As recognized in People v. Nixon half a century ago, legal abortion is actually safer than childbirth. Thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.”

The Michigan Court of Appeals has not yet issued a ruling on the defendants’ application. The state’s 1931 abortion ban remains blocked for now, though the injunction blocking it is preliminary, meaning temporary -- so a permanent block has not yet been instituted.

Gleicher also said that even with the temporary injunction, other laws regulating abortion in Michigan, apart from the 1931 ban, still remain in full effect. So, abortion care is generally operating the same way as it did while Roe v. Wade was in effect.

Michigan Gov. Gretchen Whitmer has a similar lawsuit filed in an effort to overturn the 1931 law altogether. She has asked the state supreme court to review that case directly, but the high court has not yet said whether they will hear the case at all.

Read the defendants’ application for leave to appeal below.

Related: Could info from period tracking apps be used against you if abortion is criminalized in Michigan?

About the Author:

Cassidy Johncox is a senior digital news editor covering stories across the spectrum, with a special focus on politics and community issues.