It’s an arrogant attempt to settle the most contentious political issue of our time through judicial fiat
With faulty reasoning, one Michigan judge has deprived the state of its rightful chance to determine abortion policy.
P lanned Parenthood donor and Michigan Court of Claims Judge Elizabeth Gleicher issued a decision earlier this month holding Michigan’s law banning abortion unconstitutional. The law, which prohibits abortion except in cases where it is necessary to preserve the life of the mother, remains unenforceable following Roe v. Wade’s repeal according to Judge Gleicher, who arrived at her decision by applying the same poor reasoning employed by the Supreme Court in 1973. Like the Roe court before her, Judge Gleicher has made an arrogant attempt to settle the most contentious political issue of our time through judicial fiat.
However much Judge Gleicher wishes it were so, neither the U.S. Constitution nor the Michigan constitution makes any reference to a right to abortion. This leaves Judge Gleicher no choice but to contrive such a right from the Michigan constitution’s due-process and equal-protection clauses.
She says the right to terminate “potential life” flows from our due-process clause’s right to “bodily integrity.” But this right to bodily integrity has only ever meant that one has a right to be free from unwanted governmental intrusion. It has never been interpreted to create a right to private medical services—especially not abortions. Her radical redefinition of an otherwise relatively simple protection of a person from deprivation of “life, liberty or property, without due process of law,” repeats the same flawed argumentation used in Roe v. Wade.
Dobbs v. Jackson dismantles this fantasy. There, Justice Alito points out that the substantive-due-process right of abortion obviously has no basis in our nation’s legal precedent, history, tradition, or concept of ordered liberty.
Regarding abortion, Michigan’s due-process clause is in no way broader than the federal due-process clause (the two clauses are identical word for word). Bewilderingly, Judge Gleicher parrots freshly overturned legal arguments, relying on the same theories of interpretation that the U.S. Supreme Court just stripped bare, and yet finds a different result.
Judge Gleicher also says that Michigan’s abortion ban violates the equal-protection clause because it “deprives only women of their ability to thrive as contributing participants in [the] world outside the home.” Beyond this statement’s condescension towards mothers, their ability to “contribut[e]” to society, and their potential choice to stay at home, it relies on bizarre legal gymnastics that not even Roe v. Wade dared to invoke. Even well before Dobbs v. Jackson, this idea that laws prohibiting abortion are invalid because only women can become pregnant has been routinely rejected by our federal judiciary because a state’s regulation of abortion is not a sex-based classification and is thus not subject to heightened scrutiny under the equal-protection clause.
Judge Gleicher’s opinion is neither reasonable nor prudent. Consisting of nonsensical legalese, her decision comes at a time when Michigan voters are confronting this topic through normal political means. There is a proposal on the ballot in Michigan this November that, if passed, would take Michigan from having the most pro-life law in the nation to having the most pro-abortion law in the nation by placing a right to abortion in our constitution.
The ballot proposal itself is extreme in many ways. It would allow minors of any age to get an abortion or sterilize themselves without parental consent, legalize partial birth-abortions, allow discrimination against unborn babies based on their race, sex, or disability, require taxpayers to fund abortion, and protect criminals who conduct back-alley abortions. One doesn’t have to be a full-throated pro-lifer to recognize the dangers inherent in these policies, and that this proposal goes beyond a “pro-choice” stance in favor of a “pro-abortion” one. Nevertheless, in the context of the questions that the Court of Claims attempted to resolve, the proposal is useful in that it will essentially serve as a referendum on the abortion issue for Michigan voters.
Given the proposal, Judge Gleicher’s ruling is completely unnecessary. If the proposal passes, her ruling is obsolete. If the proposal fails, then Judge Gleicher’s ruling contradicts the will of the people of Michigan, whose interests must be dutifully represented by their elected lawmakers. This should not be a novel concept: have the lawmakers make the laws, not a political-activist judge.
In attempting to usurp the political process and create law from the bench, Judge Gleicher engages in what Justice Byron White calls in his Roe dissent an “exercise of raw judicial power.” It is a crude, unapologetic effort to eliminate Michigan’s abortion ban through any means possible, no matter what our constitution actually says.