Case: Whitmer v. Linderman

This case was filed by Michigan Governor Gretchen Whitmer, to prevent enforcement of Michigan’s long-dormant anti-abortion law. Michigan’s dormant 1931 felony abortion law, MCL 750.14, criminalizes providing an abortion in almost all circumstances and threatens physicians who perform the procedure with imprisonment. MCL 750.14 was never repealed and has only gone unenforced because of the U.S. Supreme Court’s decision in Roe v. Wade, overruled on June 24, 2022, to protect the right to abortion. The Michigan Supreme Court has yet to address whether the Michigan Constitution protects the right to abortion.

On April 7, 2022, the Governor filed suit in the 6th Judicial Court for Oakland County against 13 Prosecuting Attorneys (district attorneys), in their official capacities,[1]  in counties where providers offer abortion care. Per her authority under Article 5, § 8 of the state Constitution, Governor Whitmer filed suit seeking: (1) a declaration that the Due Process Clause of the Michigan Constitution protects the right to abortion; (2) a ruling that MCL 750.14 violates the Due Process and Equal Protection Clauses of the Michigan Constitution; and (3) an enjoinment preventing defendants from enforcing MCL 7501.14. The case was assigned to Judge Edward Sosnick. (On the same day, Planned Parenthood of Michigan filed a similar suit against the Michigan Attorney General; see Planned Parenthood of Michigan v. Attorney General.)

Due to the uncertainty created by the Supreme Court’s then-pending decision in Dobbs v. Jackson Women’s Health Organization, in which a leaked draft opinion indicated that the Court would likely allow criminalization of abortion, Governor Whitmer also filed a request under Executive Message authority on April 7, 2022. Executive Message authority, an infrequently used power, allows the case to be certified for immediate Michigan Supreme Court review rather than requiring the case to begin in the trial court and then move to the Court of Appeals. To qualify, the case must involve a question of public law of such significance that an expedited judicial process is warranted. Defendants subsequently filed a brief in support of the Governor’s effort to expedite the case, citing the uncertainty surrounding abortion rights in the state. (Two of the thirteen prosecutors named as defendants sought denial of the Governor’s request and dismissal of the case.)

On April 22, 2022, an anti-abortion organization filed a motion to intervene with the Michigan Supreme Court on behalf of two anti-abortion organizations. (The same two organization also sought to join the Planned Parenthood of Michigan case.)  

On May 20, 2022, the Michigan Supreme Court agreed to consider procedural questions in this case but did not confirm that it was willing to take the case or rule on the motions to dismiss or intervene. Instead, the Court gave the Governor fourteen days to brief her response to questions posed by the Court to help it decide whether to accept the case. Responsive briefing by the defendants and any amici curiae were due two weeks after that.  973 N.W.2d 618 (Mem).   All these briefs have now been filed and the matter is under consideration. 

Because the state trial court granted a preliminary injunction against enforcement of MCL 750.14 in the Planned Parenthood case, the U.S. Supreme Court's decision in Dobbs did not immediately subject Michiganders who provide abortions to criminal prosecution. However, on August 1, 2022, the Court of Appeals held (in response to a motion seeking its superseding control in that case) that county prosecutors were not bound by that preliminary injunction. In response, Governor Whitmer sought an emergency injunction in this case against the prosecutors; Judge Cunningham administratively granted such an order that same day, and scheduled immediate further proceedings to address the issue on the merits.  After an extension on August 3, 2022, that emergency order remains in effect and so prosecutions under the statute are enjoined. Judge Cunningham will hear arguments on August 17, 2022.  

On August 10, 2022, plaintiffs filed a motion for a preliminary injunction in Oakland County circuit court, arguing that the uncertainty caused by the Court of Appeals' August 1 opinion necessitated a preliminary injunction specifically preventing local county prosecutors from enforcing MCL 750.14.

On August 19, 2022, Judge Jacob Cunningham on the Oakland County circuit granted a preliminary injunction, ruling that county prosecutors cannot enforce MCL 750.14. The preliminary injunction prevented enforcement of the ban ahead of midterm elections in November when a provision to amend the state constitution to protect reproductive rights is on the ballot.

Michigan voters overwhelmingly passed Proposition 3, the Right to Reproductive Freedom Initiative, on November 8, 2022. Prop 3 enshrined the right to reproductive freedom in the Michigan Constitution, negating the need for the Governor's law suit. The Michigan Supreme Court formally dismissed the suit on January 20, 2023.