By Dave Andrusko
In a decision handed down Tuesday, Elizabeth Gleicher, the chief judge on Michigan’s Court of Claims, held that abortion is a fundamental right under the state’s constitution. In granting a preliminary injunction, Gleicher, gave a “preliminary victory to Planned Parenthood of Michigan that would stop the revival of Michigan’s 1931 abortion ban should the nation’s high court overturn Roe,” reported Beth LeBlanc and Carol Thompson.
If Roe is overturned, “each state will gain the right to decide the legality of abortion within its borders,” according to Miranda Dunlap.
Ordinarily, a state’s attorney general would appeal. But “Democratic Attorney General Dana Nessel said she won’t appeal Gleicher’s order,” according to LeBlanc and Thompson. “Nessel, the named defendant in the case, said the ruling against her office is a ‘victory for the millions of Michigan women fighting for their rights.’”
Opponents of Gleicher’s ruling “said they will pursue further legal action to block the efforts to overturn the 1931 law and could announce their plans to do so before the end of the week.”
“”This is the kind of mess that you end up in the court system when the state’s chief executive and its attorney general refuse to uphold and defend the law that has been in place since 1931,” said John Bursch, an Alliance Defending Freedom lawyer representing Right to Life of Michigan and Michigan Catholic Conference.
“They may not like it, but no one has the ability to unilaterally ignore, change, encourage the invalidation of Michigan law. They should be working through the democratic process just like anyone else.”
Although Gleicher has a long history of donating to and advocacy for Planned Parenthood, she did not disqualify herself.
The judge argued that the 1997 Court of Appeals decision in the Mahaffey case — where she served as counsel to Planned Parenthood — established that the Michigan Constitution’s right of privacy did not include a right to abortion.
But, she noted, Planned Parenthood in 2022 is not invoking protections for abortion under the right to privacy; instead, it is saying the right to abortion lies in the Michigan Constitution’s right to bodily integrity and due process, which were not decided in the Mahaffey case.
Gleicher wrote, “Pregnancy implicates bodily integrity because even for the healthiest women it carries consequential medical risks…thus, the link between the right to bodily integrity and the decision whether to bear a child is an obvious one.”
“Forced pregnancy, and the concomitant compulsion to endure the medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions,” Gleicher wrote.
“The ruling today is absolutely egregious,” said John Bursch, the state’s former solicitor general. “Because the defendant Attorney General Dana Nessel was not defending the law, the court had no jurisdiction.”
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