Advance Notice: Briefs

Michigan Supreme Court will take up Whitmer’s abortion suit, but has questions

By: - May 20, 2022 2:14 pm

Astrid Riecken/Getty Images

The Michigan Supreme Court on Friday granted a motion for immediate consideration of Gov. Gretchen Whitmer’s lawsuit seeking to overturn the state’s 1931 abortion ban law.

However, the Supreme Court is asking the Democrat to answer a few questions. The big question is whether or not the state’s highest court needs to weigh in on the constitutionality of abortion rights in Michigan after a Court of Claims judge granted a preliminary injunction in a similar lawsuit from Planned Parenthood.

The court also asked if it should wait for the the U.S. Supreme Court decision in a Mississippi case that is expected to be issued by June. A draft decision from the U.S. Supreme Court that leaked last month showed the court’s intention to overturn the 1973 landmark Roe v. Wade decision that granted the constitutional right to abortion access. 

Gov. Gretchen Whitmer at the 2021 Mackinac Policy Conference, Sept. 21, 2021 | Ken Coleman

Michigan has a state law from 1931 that would make all abortions in Michigan a felony, unless to save the life of the pregnant woman. 

Whitmer’s lawsuit seeks to recognize the right to an abortion under the state Constitution and to strike down the state’s 1931 abortion ban law, while the Planned Parenthood lawsuit would block enforcement of the ban. 

On Tuesday, Court of Claims Judge Elizabeth Gleicher ordered the injunction, which means enforcement of the ban would be paused, even if Roe were to be overturned, until the court makes a final decision in the case.

The Supreme Court agreed to Whitmer’s request to take on this case quickly without going through the lower courts first. But in the memo Friday, the court also asked the governor to answer whether or not this case should be taken up before SCOTUS makes a final decision on Roe

Whitmer spokesperson Bobby Leddy said her legal team is reviewing the court’s questions and “welcomes the opportunity to inform the Court of the need to resolve this crucial constitutional question now.”

In light of the leaked opinion from conservatives justices of the U.S. Supreme Court, and the fact that Michigan has an outdated law on the books from 1931 making abortion a felony even in cases of rape or incest, it has never been more important for the Michigan Supreme Court to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

Democratic-nominated Justice Megan Cavanagh said she would have ordered that the supplemental briefing be completed within two weeks, “given the potential urgency underlying the issues in this case.”

“I believe the Court’s order today fails to treat this case with the urgency it deserves, I respectfully dissent from the majority’s refusal to expedite this supplemental briefing schedule,” Cavanagh said. 


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Allison R. Donahue
Allison R. Donahue

Allison R. Donahue covers education, women's issues and LGBTQ issues. Previously, she was a suburbs reporter at the St. Cloud Times in St. Cloud, Minn., covering local education and government. As a graduate of Grand Valley State University, she has previous experience as a freelance researcher for USA Today and an intern with WOOD TV-8. When she is away from her desk, she spends her time going to concerts, comedy shows or getting lost on hikes in different places around the world.