Michigan judge won't step down from abortion case: Argument 'borders on frivolous'

A Michigan judge on Friday denied a legal request from state lawmakers to step down from presiding over a pivotal abortion lawsuit, saying at least one of their arguments "borders on frivolous." 

The decision from Court of Claims Chief Judge Elizabeth Gleicher ensures that her previous order barring the enforcement of a 1931 law criminalizing abortion stays in place, at least for now. 

"The question that I must answer for myself in every case in which I sit as a judge, including this one, is whether I can fairly judge the facts and the law before me, and whether my participating gives rise to an appearance of impropriety. I have engaged in this critical exercise on many occasions during the 15 years of my Court of Appeals tenure," Gleicher wrote in her ruling.  

"As is true in every case in which I sit in judgment, my job is to follow the law, not make it. My record on the Court of Appeals and the Court of Claims proves my fidelity to this precept." 

More:Michigan Court of Claims judge grants injunction against 1931 abortion law

More:Republican Legislature asks court to reverse injunction in Planned Parenthood lawsuit

This is only the latest attempt to legally remove Gleicher from the case, a lawsuit filed by Planned Parenthood of Michigan against Attorney General Dana Nessel that asks the court to determine the Michigan Constitution ensures the right to an abortion. The Michigan Legislature successfully intervened in the case after Nessel said she would not use her office's resources to defend the state law that bans most abortions. 

Gleicher issued a ruling in May in this case, barring enforcement of the 1931 state law that criminalizes all abortions except those performed to save the life of the pregnant person, arguing Planned Parenthood had a substantial chance of winning its case. 

That state law was dormant until June, when the U.S. Supreme Court overturned Roe v. Wade. Now, Gleicher's ruling is the only legal barrier to that law going back into effect. 

All of the efforts to remove Gleicher rely on her past connections to key abortion cases in Michigan and previous political contributions to Planned Parenthood and Democratic political candidates, including Nessel. 

More:Michigan judge who donated to Planned Parenthood now presides over its abortion lawsuit

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

After Gleicher was assigned to oversee this lawsuit, in April she sent a letter to both sides informing them that she regularly contributes to Planned Parenthood and previously represented the organization in a key abortion case.

However, in her new ruling, Gleicher notes that she incorrectly remembered her affiliation with that case, Mahaffey v. CCC. Planned Parenthood filed statements in support of Gleicher's client, but she didn't actually represent the organization in the lawsuit, Gleicher notes. 

The Legislature's argument that her involvement in the Mahaffey case should bar her from overseeing this lawsuit "borders on frivolous," Gleicher wrote. She points to court rules that support disqualifying a judge only if that person represented a party involved in a lawsuit within the last two years. Mahaffey was decided 23 years ago, Gleicher notes. 

But she does acknowledge regularly donating to Planned Parenthood, along with several donations to Nessel and Gov. Gretchen Whitmer. The contributions to Planned Parenthood were regular and were generally $1,000 or less, Gleicher said, adding her last came in December 2021. 

The state's code of conduct for judges does not prohibit political contributions, and Gleicher has regularly ruled against Nessel in other cases, the judge noted. 

"Just as judges must be presumed to be impartial even if they have repeatedly ruled against or previously represented a part or its interests, judges must be presumed to be capable of separating the objects of their personal charitable giving from their professional obligations," Gleicher wrote.  

"Religious beliefs, church membership, and affiliations with community groups do not automatically suggest bias in a case involving the involved organization. Nor do relatively small contributions to institutors providing health care.

Gleicher says the "real argument" underlying the Legislature's attempt to remove her from the case stems from their opposition to the national right to an abortion previously established in the Roe decision. 

"Every judge on my two courts almost certainly has a deeply-held opinion regarding whether abortion should be legal, and the extent to which the state or federal constitutions should be interpreted to encompass such a right," Gleicher wrote.

"The constitutionality of abortion is an important legal question, and it is appropriate that all citizens of this country consider it – including judges." 

This is not a final decision on the injunction. Currently there are legal cases before both the Michigan Court of Appeals and Michigan Supreme Court that may ultimately overturn or reinforce Gleicher's ruling.

Local prosecutors who oppose Gleicher's ruling have asked the Court of Appeals to overturn it. In a separate lawsuit, Whitmer asked the Michigan Supreme Court to immediately take up her own case where she also says the state Constitution includes the right to an abortion. 

Either court could act at any time. 

Contact Dave Boucher at dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.