Gov. Whitmer again asks court to take up abortion suit, citing shifting BHSH stance

LANSING – Gov. Gretchen Whitmer again pressed the Michigan Supreme Court for quick action on her abortion lawsuit Monday, citing confusion — including from the state's largest hospital system — that has emerged in Michigan since the U.S. Supreme Court overturned Roe v. Wade on Friday.

Friday's ruling "has already resulted in uncertainty, confusion, and efforts to contract abortion access in Michigan," despite a court order in another lawsuit that is supposed to temporarily maintain the status quo, Whitmer said in a court filing.

Whitmer filed her lawsuit in May, seeking to bypass lower courts and asking the Michigan Supreme Court to strike down Michigan's 1931 law — which criminalizes abortions not performed to save the life of the pregnant person — as violating Michigan's state constitution.

Friday's 6-3 ruling by the U.S. Supreme Court would have put the 1931 law into effect, were it not for a preliminary injunction a Michigan Court of Claims handed down in May.

On Friday, Whitmer filed a motion asking the Michigan Supreme Court to take up her lawsuit quickly, in light of the ruling by the U.S. Supreme Court earlier that day.

More: Michigan's largest health system reverses course on abortion stance

More: These Mich. prosecutors will not charge women who have abortions, or doctors who perform them

In a new court filing Monday, Whitmer highlighted developments in Michigan over the weekend, saying they "underscore the need for this court's immediate intervention."

Whitmer noted:

• Beaumont Health and Spectrum Health, a large medical provider in metro Detroit and western Michigan, announced Friday that it would begin following the 1931 law, before clarifying that it would continue to perform abortions when medically necessary.

• Jackson County Prosecutor Jerry Jarzynka and Kent County Prosecutor Chris Becker have said publicly they are not bound by the preliminary injunctions and could now prosecute under the 1931 law if presented with appropriate cases.

Some prosecutors say they are not subject to the preliminary injunction issued by Court of Claims Judge Elizabeth Gleicher because they are not under the direction and supervision of Attorney General Dana Nessel, who was a party to the case, brought by Planned Parenthood of Michigan, in which the injunction was issued.

Whitmer said she "firmly disagrees" with that position and cited a state law that says the AG "shall supervise the work of, consult and advise" county prosecutors.

But the confusion, she said, calls for prompt action on her lawsuit, which the Michigan Supreme Court has not yet agreed to take up.

Nessel, meanwhile, issued a Friday statement, shortly after Whitmer's latest court filing and described as an effort to provide clarity, in which she said Gleicher's order bars enforcement of the 1931 law by her office "and all 83 county prosecutors."

Nessel has been much less forceful on that point previously, and during a Friday news conference took no position on whether Gleicher's injunction applies to county prosecutors.

Gleicher's injunction clearly applies to Nessel, who was a defendant in the Planned Parenthood case, and who also instructed Nessel to communicate the injunction to all state and local officials under her supervision.

"What I had maintained before is that I didn't believe that I personally had authority to tell the county prospectors what they could or could not charge," Nessel said Friday.

A judge does have that authority, she said.

"The theory I believe espoused by the court is that ... even though I was the named defendant in that lawsuit, that it applied equally to all prosecutions in the state," Nessel told reporters.

"But then, again, you know, that's something that I think would have to be expounded upon, perhaps by the court, and I'm not going to take a position on that."

She said it would not surprise her to see county prosecutors start to bring cases under the 1931 law.

David Kallman, an attorney with the Great Lakes Justice Center representing several county prosecutors, said Friday "it is laughable," and "turning the law on its head" to say the injunction applies to Michigan county prosecutors.

"Just show me where our county prosecutors that we're representing are employees of Dana Nessel," Kallman said. "They're not. Are they working in concert with Dana Nessel? Obviously no, we're opposing her (legal) position. Are they her agents? No, they are not."

The injunction, which Kallman is challenging on behalf of Jarzynka and Becker, will likely stay in place for at least another week.

On Monday, the Court of Appeals denied a request from Kallman and his team to immediately issue a decision in the case. The court instead posed a question about jurisdiction, giving all parties until the end of the day Friday to respond.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.  Read more on Michigan politics and sign up for our elections newsletter. 

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This article originally appeared on Detroit Free Press: Whitmer to Michigan Supreme Court: End confusion over abortion