Judge Blocks Draconian Abortion Ban For Violating Constitution


This week, a Michigan judge blocked the enforcement of a nearly century-old abortion ban in the state. The ban covered the entirety of pregnancy and included exceptions only for cases where the life of the pregnant person was endangered, and the new block on enforcing it applies to state and county prosecutors, per the judge.

Although the law went unenforced for decades, the decision of the U.S. Supreme Court to overturn Roe v. Wade suddenly meant new restrictions on abortion at the state level were possible — and that previously unenforced restrictions might become active. Michigan Judge Elizabeth Gleicher previously suspended the enforcement of the disputed state ban, which is from 1931, and she has now issued a permanent injunction against the law becoming active again. As summarized by the Michigan news outlet Bridge Michigan, the court challenge underlying Gleicher’s recent decision was from Planned Parenthood of Michigan and Dr. Sarah Wallett, who serves as the group’s chief medical operating officer. After the judge’s earlier temporary block on enforcing the ban, the Republican-controlled Michigan state Legislature appealed, and an appeals panel concluded in August that Gleicher’s initial block didn’t cover county prosecutors.

Local prosecutors were, however, covered by another injunction against the enforcement of the challenged ban. Although appeals are possible, Gleicher concluded in permanently striking down the near-total ban that the measure violates the state Constitution. “A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives — it denies them of their dignity,” the judge said. “Michigan’s Constitution forbids this violation of due process.” The judge also noted some of the damaging impacts of the ban, which “forces a pregnant woman to forgo her reproductive choices” and leaves her as “an involuntary vessel entitled to no more respect than other forms of collectively owned property” under the disputed provisions. (The latter quote is from legal expert Laurence Tribe.) She also noted the disproportionate impact on those who may become pregnant, implying a level of discrimination.

Separately, Michigan Democratic Governor Gretchen Whitmer is pushing for the state Supreme Court to outline a right to abortion in the state Constitution before legal challenges in lower-level courts conclude. “With our rights still hanging by a thread, the Michigan Supreme Court needs to provide certainty,” Whitmer said. Another injunction against the enforcement of the 1931 ban already emerged amid Whitmer’s court challenge. Oakland County Circuit Judge Jacob Cunningham issued a preliminary injunction that evidently kept county prosecutors from potentially enforcing the ban even after the appeals panel undercut Gleicher’s earlier decision under pressure from Republicans. Michigan officials are also deliberating over potentially adding a proposed state constitutional amendment to November ballots that would formally enshrine abortion rights in the state Constitution. The question of including the proposal, which garnered hundreds of thousands of supportive signatures, is now before Michigan’s Supreme Court.