Updated: Court of Claims judge rules 1931 abortion ban can’t be enforced 

Updated, 3:16 p.m. 9/7/22 and 3:51 9/7/22 with comments from Planned Parenthood, Attorney General Dana Nessel

The Michigan Court of Claims ruled Wednesday that the state’s 1931 abortion ban law is “unconstitutional” and cannot be enforced.

Court of Claims Judge Elizabeth Gleicher, who issued an injunction in May that barred enforcement of the 91-year-old abortion ban, ruled in the Planned Parenthood of Michigan lawsuit to “permanently enjoin” the attorney general from enforcing the law. 

The state’s 1931 abortion ban prohibits doctors from performing any abortions except to save the life of the “pregnant woman.”

In her ruling, Gleicher argued that the Michigan Supreme Court defines the Due Process Clause, which grants the right to due process of law and equal protection at both the federal and state levels of government, differently than the U.S. Supreme Court. 

She argues that Michigan’s Constitution spells out that the “most pressing rule” when interpreting the Due Process Clause is “that the provisions for protection of life, liberty and property are to be largely and liberally construed in favor of the citizen.”

Dr. Sarah Wallett, the chief medical operating officer at Planned Parenthood of Michigan, called the ruling a “victory on behalf of Michigan abortion providers and the patients who depend on us for care.”

“This is a historic victory for patients and providers in Michigan who have been forced to live under the threat of an archaic criminal abortion ban since the U.S. Supreme Court overturned Roe v. Wade. By permanently blocking the 1931 law criminalizing abortion, Michigan’s Court of Claims has protected the continuity of care that Michiganders have enjoyed for nearly half a century and ensured that no overzealous prosecutor can come between a patient, their provider, and their health care,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.

The back-and-forth legal fights have been non stop since Planned Parenthood of Michigan and Democratic Gov. Gretchen Whitmer filed lawsuits in April to protect legal abortion access in Michigan. These fights have played out in the state’s Court of Appeals, Court of Claims and Supreme Court, and have been exacerbated since the U.S. Supreme Court ruled to overturn Roe v. Wade in June. 

After Gleicher’s injunction in the spring, Republicans in the Michigan Legislature filed a motion for leave to appeal, calling the injunction an “egregious abuse of judicial power.” The state Court of Appeals later ruled that county prosecutors are exempt from the injunction. Within the same day, an Oakland County Circuit Court judge reversed that ruling and later reinforced his ruling after hearing oral arguments.

In a statement following the ruling, Attorney General Dana Nessel celebrated the “legal victories,” but warned about the current legal battle with the Reproductive Freedom For All ballot initiative. The ballot proposal language was rejected by the Board of State Canvassers last week due to spacing errors, and now the ballot question will only be on the ballot if the Michigan Supreme Court rules against the board.

“Ensuring women have the right to make personal healthcare decisions today and in the future must be pursued at the ballot box,” Nessel said. “As Attorney General, I have used the resources of my department to ensure access to care at every opportunity, but our fundamental rights should not be subject to the discretion of elected office holders. All Michiganders have a duty to ensure their rights are preserved and protected.”