Gleicher is a 2007 appointee of Gov. Jennifer Granholm. She is a donor to Planned Parenthood and represented the organization as a volunteer lawyer with the ACLU in a key 1990s abortion case. That case led the Michigan Appeals Court to determine that the state constitution “does not guarantee a right to abortion that is separate and distinct from the federal right,” the Detroit Free Press reports.
When Gleicher disclosed this information, the Michigan Republican Party called on her to recuse herself from the case, but she declined.
Complicating the lawsuit was that Attorney General Dana Nessel agreed that there was a “lack of adversity” and no jurisdiction for the Michigan Court of Claims because she does not intend to enforce the law against abortion. Nessel, a Democrat, does not believe the law is constitutional, but thought the lawsuit should have been dismissed.
Planned Parenthood countered that the attorney general of the state can change.
Bursch said the situation was “extraordinary.”
“This is the kind of mess that you end up with in the court system when the state executive and its attorney general refuse to uphold and defend a law that has been in place since 1931. They may not like it. But no one has the ability to unilaterally ignore, change or encourage the invalidation of Michigan law. They should be working through the democratic process, like anyone else,” he said.
Bursch apologized for initially describing the judge in the case as a “rogue judge,” saying instead “it’s certainly a rogue decision.”
“It’s a rogue decision for someone who is ethically conflicted in hearing the case and lacks jurisdiction to decide the case to nonetheless go ahead and issue an injunction against the attorney general of the state, based on arguments that no one has argued before her in briefing or in oral argument,” he said.
Bursch said the Alliance Defending Freedom legal group had initially been invited to submit arguments, but then was excluded from participating because it wasn’t a party to the case.
“This was all done in secret with parties that agreed on the results. It’s improper, six ways from Sunday,” Bursch said.
Right to Life Michigan and the Michigan Catholic Conference are considering what options they can pursue. The legal complexities of the case could mean seeking appellate review without necessarily intervening as a party.
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“We are unquestionably going to take legal action. I would expect such a decision to be announced by the end of the week,” said Bursch, whose legal group represents the two organizations.
Abortion advocacy groups in the state have launched a ballot initiative to override the 1931 law by way of a constitutional amendment.
Gov. Gretchen Whitmer has filed her own lawsuit which asks the Michigan Supreme Court “to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution.”
As reason for the lawsuit, she cited a possible decision in Dobbs v. Jackson Women’s Health Organization, a pending U.S. Supreme Court case that could alter or abolish precedent mandating legal abortion.
The governor’s lawsuit named as defendants the prosecutors in 13 Michigan counties with abortion clinics. The seven Democratic prosecutors have agreed not to enforce the law, while the six remaining prosecuting attorneys are Republicans.
That lawsuit drew some criticism.
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