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Appeals court asked to take over Michigan abortion case, void preliminary injunction

Two county prosecutors are joining abortion opponents in asking the Michigan Court of Appeals to take over a lawsuit challenging Michigan's abortion law and to vacate a preliminary injunction issued in the case earlier this week. 

Alliance Defending Freedom lawyer John Bursch filed a complaint for an order of superintending control in the Court of Appeals late Friday on behalf of Right to Life of Michigan, the Michigan Catholic Conference, Kent County Prosecutor Christopher Becker and Jackson County Prosecutor Jerard Jarzynka.

The complaint asked the court to take over the case from Court of Claims Judge Elizabeth Gleicher, vacate her previous rulings and dismiss the case. Or "at a minimum," the complaint asked that the appellate court to vacate the preliminary injunction and order Gleicher to recuse herself.

The parties made the request on the grounds that the judge acted without jurisdiction in the matter, is a donor to plaintiff Planned Parenthood and because her order inappropriately attempted to enjoin county prosecutors through a decision aimed at defendant Attorney General Dana Nessel. 

Bursch, the state's solicitor general under Republican former Attorney General Bill Schuette, wrote that the Planned Parenthood case had become "a runaway train" that only the Court of Appeals could stop. 

"The court must intervene and do so immediately," Bursch wrote in Friday's filing. "Michigan courts lack jurisdiction over manufactured disputes where there is no adversity, no actual controversy, and the plaintiff's claims are hypothetical, moot, and not ripe."

The complaint asked for immediate consideration and a ruling within seven days, noting that Gleicher's injunction becomes "unappealable" after June 7. 

The filing is the latest twist in a case whose legal maneuverings have been far from simple.  

Gleicher on Tuesday granted Planned Parenthood of Michigan a preliminary injunction that blocked enforcement of Michigan's long-dormant abortion ban, should the U.S. Supreme Court overturn the 1973 Roe v. Wade decision that granted a right to an abortion. A leak of a high court draft opinion indicated a majority of justices would overturn Roe.

Gleicher said the ban violated a woman's right to bodily integrity within the due process clause in the Michigan Constitution and, in doing so, sidestepped a 1997 Court of Appeals opinion finding there was no right to abortion in the state constitution. 

"If a woman's right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth," Gleicher wrote.

Planned Parenthood's case had been filed against Nessel, a first-term Democrat who said neither she nor anyone in her office would defend the state law against Planned Parenthood's lawsuit. 

Bursch and other opponents immediately cried foul, in part because they argued there was no case or controversy or adverseured party that gave Gleicher jurisdiction over the case, but also because Gleicher disclosed early on in the case that she was an annual donor to Planned Parenthood and had represented them in the key 1997 abortion rights case. Gleicher said she could remain unbiased.

Neither Right to Life of Michigan nor Michigan Catholic Conference are defendants in the case. Their complaint in the Court of Appeals is considered new action and, technically, not an appeal of the preliminary injunction. 

Both groups are avoiding becoming defendants in the case in a bid to deprive the court of the adversity or jurisdiction they say it lacks to move forward. 

Becker and Jarzynka joined the complaint because of the impact Gleicher's order could have on county prosecutors. 

"Judge Gleicher’s order purports to cover people that the attorney general supervises, and the attorney general has sent an emailed letter to all of the county prosecutors that in essence instructs them to comply with this decision," Bursch said Friday.

Gleicher's order enjoined Nessel and anyone under Nessel's "control or supervision" from enforcing the law if or when it gets revived.

Nessel said Tuesday she would comply with the order and forego appeal, even though earlier this month she said she did not believe she had authority over county prosecutors to stop them from enforcing the abortion ban. 

"I don’t believe that I as attorney general of this state have the authority to tell duly elected prosecutors what they can and what they cannot charge," Nessel said.

"If that were the case, I don’t even know why we would elect our county prosecutors in the first place, if they’re not allowed to make their own decisions.”