Michigan legal fights highlight post-Roe confusion
Two abortion orders — in different directions — on the first day of August. Also: Alabama execution questions remain, a federal takeover of a Mississippi jail, the imperial Supreme Court, and a park.
It’s August.
While this is generally a month when things slow down a bit on the news front in DC, it’s not clear how much that is going to be the case this year.
That’s due in part to the fallout from this year’s Supreme Court decisions, particularly overturning Roe v. Wade, but also because pressure is on the Democrats in Congress to get more done before the midterm elections.
The week started off with a post-Roe ruling out of Michigan that could put the state’s long-dormant abortion ban back into effect. And then, like Newton’s Third Law but for courts, an equal and opposite reaction ruling. (More on all that below.)
At the same time — and in a reminder of the existential “so, democracy?” problems we continue to face — Michigan Secretary of State Jocelyn Benson remains worried about anti-democratic actions from local officials, as expressed in comments made in advance of Tuesday’s primary elections in the state.
MICHIGAN’S ABORTION UNCERTAINTY: In Michigan, questions remain about the state of abortion in the state — with its Democratic governor and attorney general and Republican House and Senate — after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
Within that one state, almost all of the possible responses to the Dobbs ruling have been raised. There is a 1931 abortion ban that has never been overturned, there are statewide leaders who strongly support abortion rights, there is litigation pending in state courts, there are local prosecutors who want to enforce bans and others who say they will refuse to do so, and there is an abortion rights ballot measure that will be on the ballot this November.
The lack of clarity in Michigan was in full display on Monday.
First, the Michigan Court Appeals ruled that county prosecutors are not bound by a Michigan Court of Claims ruling from May that barred state officials from enforcing the 1931 ban.
Here is the key section of the appeals court’s decision:
Shortly after the ruling, Planned Parenthood of Michigan — which had brought the original lawsuit that led to the injunction — issued a statement that the ruling had no immediate effect on its operations: “[O]ur doors remain open.” Citing a provision of state law, the group stated that “the Michigan Court of Appeals ruling cannot take effect during the 21 day appeal window.”
Gov. Gretchen Whitmer and Attorney General Dana Nessel, meanwhile, responded to the ruling by filing a new action, seeking a temporary restraining order directly blocking prosecutors from enforcing the abortion ban. Later Monday, a circuit judge agreed to issue the temporary order blocking prosecutors — including Jerard Jarzynka of Jackson County and Christopher Becker of Kent County, both of whom had brought the other action to the appeals court — from enforcing the ban. A further hearing in this second case is scheduled for Wednesday afternoon.
Regardless of all that, seven county prosecutors opposed to the abortion ban had issued a statement after the first ruling, from the appeals court, reaffirming that they will not enforce the ban, even if it goes into effect.
All in a post-Roe day.
ALABAMA QUESTIONS: A day after Alabama’s unexplained three-hour delay in its execution of Joe Nathan James, the state’s Department of Corrections issued a statement on July 29 that it described as an “update following last night’s execution.”
It raised more questions than it answered. Here it is:
“As Commissioner John Hamm stated last night, when carrying out the ultimate punishment, we have protocols that lay out a very deliberate process to make sure the court’s order is carried out correctly. ADOC’s execution team strictly followed the established protocol. The protocol states that if the veins are such that intravenous access cannot be provided, the team will perform a central line procedure. Fortunately, this was not necessary and with adequate time, intravenous access was established.” – The Alabama Department of Corrections
In response, I asked the following three questions:
At what time did the team begin attempting intravenous access?
Was a central line procedure considered (or attempted)?
If not, why was it mentioned in the most recent statement?
I’ve not heard back, but, regardless, we will be returning to this at Law Dork in the future.
FEDERAL COURT TAKES OVER STATE JAIL: A federal court in Mississippi on July 29 took the extraordinary step of placing the Raymond Detention Center in Hinds County, Mississippi, in receivership.
The lesson here might very well be: Don’t ignore U.S. District Judge Carlton Reeves.
The lesson also might be: Don’t let state and local officials keep making excuses for inaction.
NEW SCHOLARSHIP: An interesting new read from Mark Lemley, a law professor at Stanford Law School, on the current Supreme Court:
The Court of late gets its way not by giving power to an entity whose political predilections are aligned with the Justices’ own, but by undercutting the ability of any entity to do something the Justices don’t like. We are in the era of the imperial Supreme Court.
Check it out.
BELLA ABZUG: The New York City park that I visited recently, pictured above, is named after the former member of Congress and women’s rights activist who introduced a bill back in 1973 aimed at ending anti-abortion legislation nationwide.
Even once Roe v. Wade was decided, Abzug still wanted a federal law. The Abortion Rights Act was never passed — and certainly would have faced its own court challenges — but it purported to ban all legislation restricting abortion rights. According to Congress.gov, the bill:
Provide[d] that in order to secure the constitutional right of privacy and to prevent its unauthorized infringement, as guaranteed by the rights of due process and equal protection of the law, neither the United States nor any state shall enact or enforce any law, State constitutional provision, regulation, policy, or other device which infringes the right of any female to terminate a pregnancy that she does not wish to continue, or which deprives any female of access to adequate medical assistance in the exercise of such right.
One of the seven co-sponsors of the bill was former Rep. John Conyers, then a 43-year-old man in his first decade in Congress.
Representing Michigan.