Judge denies Michigan Legislature’s request to disqualify herself from abortion lawsuit

GOP-led legislature acting as intervening defendants claim judge is too biased to hear case

Protesters marched from the federal courthouse to the state Capitol in Austin after the Supreme Court's decision to overturn Roe v. Wade on June 24, 2022. (Evan L'Roy/The Texas Tribune, Evan L'Roy/The Texas Tribune)

A Michigan Court of Claims judge has denied a motion filed by Republican lawmakers to disqualify her from ruling in a case that may ultimately determine the future of abortion regulation in the state.

As intervening defendants in a lawsuit seeking to block Michigan’s 1931 law banning abortion, the GOP-controlled state Legislature filed a motion to disqualify Court of Claims Judge Elizabeth Gleicher.

In May, Gleicher issued a preliminary injunction that temporary blocks the 1931 law, allowing abortion care to continue legally in Michigan following the overturning of Roe v. Wade. The decision sided with the plaintiffs, Planned Parenthood of Michigan and the American Civil Liberties Union, who sued Michigan Attorney General Dana Nessel in an effort to prevent the law from taking effect, claiming that it violates the state’s constitution.

As of July 29, Michigan’s 1931 law banning abortions is temporarily blocked and cannot be enforced. Abortion care remains legal for individuals statewide.

The Michigan Legislature has since intervened in the lawsuit, hoping to uphold the 1931 law that deems abortion care a felonious act.

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

The intervening defendants claim that Judge Gleicher is incapable of being unbiased while overseeing this case due to financial contributions she has made to the campaigns of Democratic lawmakers in 2018, as well as Planned Parenthood. The motion also claims that Gleicher’s involvement as an attorney in a 1997 lawsuit related to specific details of abortion regulation would deem her unable to be impartial in the current matter.

Judge Gleicher on Friday denied the defendants’ motion to disqualify her from hearing this case, and explained her decision in detail in a published opinion. You can read the entire opinion below.

According to Gleicher, the financial contributions she makes to political campaigns or health care organizations are legal and are well within the Michigan Code of Judicial Conduct. The judge says that the code of conduct does not prohibit judges from contributing to a political party.

“My contributions to Governor Whitmer and Attorney General Nessel are irrelevant to my ability to fairly hear this case and do not give rise to an objective appearance of impropriety. Governor Whitmer is not a party to this action. Like the intervening defendants, Attorney General Nessel is a defendant in this case. I have rejected Attorney General Nessel’s legal argument that this case is non-justiciable, providing but one example that my political support for her candidacy in 2018 does not equate with a likelihood that I will agree with her in the cases that come before me.”

Judge Gleicher

Gleicher also stated that she has donated to Planned Parenthood for “many years,” but her donations never exceed $1,000 per year, which she says is not enough to make her a significant stakeholder in the health care organization or the outcome of this case.

“The question that I must answer for myself in every case in which I sit as a judge, including this one, is whether i can fairly judge the facts and the law before me, and whether my participation gives rise to an appearance of impropriety.

" ... I make yearly charitable contributions to Henry Ford Hospital, the provider of my personal health care. I have not considered these contributions, or my deep affection for the hospital’s personnel, as reasons to disqualify myself from cases involving Henry Ford Hospital ... Like many judges, I make charitable contributions ... They do not equate with support for an organization’s legal position in a case that has not even been filed.”

Judge Gleicher

The opinion goes on to explain Gleicher’s role in the 1997 case known as Mahaffey, which challenged the law that mandates Michigan physicians to provide abortion patients with certain information and require a 24-hour waiting period. Judge Gleicher says she served as an attorney in that case, but Michigan law allows a person to act as a judge in a case they were involved in after two years have passed. Several decades have passed since Mahaffey.

Aside from the intervening defendants’ claims, some of which Gleicher says border on “frivolous,” the judge claims that the legislature did not file the motion requesting disqualification by the required deadline. Gleicher says the motion should have been filed in June.

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.

In May, Judge Gleicher granted the PPMI’s and ACLU’s 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. In her opinion, Gleicher stated that the right to bodily integrity as outlined in the Michigan Constitution makes a ban on abortions unconstitutional.

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 1931 law.

The intervening defendants initially filed a motion in June asking the Court of Claims to reconsider the imposed preliminary injunction, but that request was denied. On 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. A decision has not yet been made.

Read Judge Gleicher’s complete July 29 ruling below.

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.