Michigan is one of several states that has on its statutory books a pre-Roe ban on abortion. Under ordinary principles of law, that ban would spring back into enforceability if Roe is overturned. So it wouldn’t have been a surprise if Michigan governor Gretchen Whitmer, an ardent supporter of legalized abortion, had urged the Michigan legislature to repeal or revise the pre-Roe ban.
But the actual path by which that ban has now been enjoined is far more sinuous and disturbing. In brief:
1. In April, Planned Parenthood of Michigan (PPM) filed a lawsuit against Michigan attorney general Dana Nessel seeking to enjoin her from enforcing the abortion law. Nessel, like Whitmer, is a vocal supporter of legalized abortion and had already vowed not to enforce the law. As PPM surely anticipated, Nessel immediately announced that she agreed with PPM that the law violates the Michigan constitution and that she would not defend it (and would not allow anyone in her office to do so).
2. PPM’s lawsuit was randomly assigned to chief judge Elizabeth L. Gleicher of the state court of claims. Gleicher notified the parties (via a letter from the court clerk) that “she makes yearly contributions to Planned Parenthood of Michigan” and “represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997, in Mahaffey v. Attorney General.” She concluded, however, that she “does not believe this warrants her recusal, and is certain that she can sit on the case with requisite impartiality and objectivity.” Ah, yes, of course.
3. It turns out that Gleicher’s connections with PPM and the cause of abortion are even much stronger than she disclosed. As amici Right to Life of Michigan and the Michigan Catholic Conference documented, her own bio states that she “received the Planned Parenthood Advocate Award” in 1998. In addition to representing PPM in unsuccessfully challenging an informed-consent law in Mahaffey, Gleicher also “represented Planned Parenthood in challenging a Michigan pro-life law requiring minors to obtain the consent of their parents before obtaining an abortion.” In addition, she “served as a lawyer for the ACLU in challenging a Michigan pro-life law that prohibited the use of public funds to pay for abortion,” and she “served as a lawyer for the ACLU and represented a halfway-house resident against federal officials who tried to prevent the resident from taking her baby’s life after the first trimester had expired.”
4. Needless to say, neither PPM nor Nessel moved to disqualify Gleicher. Nor could anyone else, as no one could take part as an intervenor in the case.
5. In her ruling yesterday, Gleicher acknowledged that Mahaffey is binding precedent on the proposition that the Michigan constitution’s “generalized right of privacy … does not embrace a right to abortion.” But she evaded that precedent by contending that a supposedly distinct “right to bodily integrity” wasn’t at issue in Mahaffey, and she of course found that the Michigan law violates that right.
6. Both Whitmer and Nessel immediately celebrated the state’s loss in court, and Nessel declared that she “has no plans to appeal.”
Let’s see if Planned Parenthood of Michigan gives Gleicher another Planned Parenthood Advocate Award.