Michigan Supreme Court Poses Questions To Whitmer In Abortion Lawsuit, Looks Into Taking Up Case

The Michigan state Supreme Court said it would consider specific procedural questions in Democratic Governor Gretchen Whitmer’s lawsuit concerning an almost 100-year-old law that bans most abortions in the state. 

The court reportedly “granted a motion for immediate consideration,” of Whitmer’s case, per MLive, but did not show whether it will consider Whitmer’s stance that the Michigan Constitution allows for the right to an abortion. It asked Whitmer to consider several questions and provide answers in the coming two weeks. Whitmer is utilizing executive authority to request that the court immediately take up her lawsuit, but it does not have to oblige.

The questions include, per the Detroit Free Press:

• Whether the Court of Claims’ injunction makes it unnecessary for the Michigan Supreme Court to immediately take up the governor’s case;
• Whether the questions posed should be answered before the United States Supreme Court determines the fate of Roe v. Wade, and whether that decision would be binding to the questions of state abortion rights raised by the governor
• “Whether there is an actual case and controversy requirement and, if so, whether it is met here”;
• An explanation of the Executive Message powers granted by law and why the question of abortion constitutionality merits using this authority; and
• Whether the power only allows the governor to defend existing laws, as opposed to questioning the constitutionality of existing laws.

Earlier this week, Michigan’s Court of Claims issued a preliminary injunction blocking the state’s 1931 law that bans abortion, after the state’s Planned Parenthood and an abortion provider sued. Under the order, the attorney general of Michigan is not allowed to enforce the law. Court of Claims Judge Elizabeth Gleicher decided that Planned Parenthood had a high likelihood of winning. 

Last month, Whitmer filed a separate lawsuit directed at the 1931 law, which could go back into place if Roe v. Wade is overturned by the Supreme Court.

As Politico reported, “The Michigan law bans abortion at any stage of pregnancy, with an exception for the health of a woman but not for cases of rape or incest. It has remained on the books for decades despite the 1973 Roe decision rendering it unenforceable and establishing the right to abortion nationally.” 

Whitmer’s lawsuit includes 13 prosecutors of counties with abortion clinics. County prosecutors also have two weeks to submit their answers to the questions after Whitmer does so.

Whitmer spokesperson Bobby Leddy said Friday, “In light of the leaked opinion from conservatives justices of the U.S. Supreme Court, and the fact that Michigan has an outdated law on the books from 1931 making abortion a felony even in cases of rape or incest, it has never been more important for the Michigan Supreme Court to resolve whether the state constitution protects the right to abortion.”

“We are reviewing the Michigan Supreme Court’s questions, and welcome the opportunity to inform the court of the need to resolve this crucial constitutional question now. Women need clarity and confidence that their rights will be protected, and that’s what Gov, Whitmer is hoping to achieve with this case,” Leddy added.

States across the country have been watching for a a ruling from the Supreme Court on the Mississippi case Dobbs vs. Jackson Women’s Health Organization. A recent Supreme Court draft majority opinion on the case showed the high court could very well overturn Roe v. Wade and Planned Parenthood v. Casey, returning the decision of abortion laws back to the states. 

In the leaked draft opinion, Justice Samuel Alito wrote, “We hold that Roe and Casey must be overruled,” noting, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”