Michigan Law and the Scales of Justice:
Life in the Balance
Summary of the Michigan Supreme Court Whitepaper
For a PDF copy of the full Michigan whitepaper, please click here
Michigan presents a strong statutory scheme protecting life and a Supreme Court majority committed to principles of judicial restraint. This presently provides an excellent platform for defending life, particularly with a vision toward the era after Roe v Wade’s reversal.
Life Issues
Abortion
Since Roe v Wade and Doe v Bolton in 1973, the Supreme Court of Michigan has directly addressed the question of abortion rights in just two cases: the 1973 companion cases People v Bricker and Larkin v Cahalan. In Bricker, the defendant was charged with and convicted of “attempting to perform the abortion procedure in violation of Michigan’s penal code.” Though the crime took place before Roe, the Michigan Supreme Court held that the defendant was still criminally responsible under the state’s pre-Roe statutory abortion ban. The Court read Roe narrowly and determined that it applied only to licensed physicians, so the pre-Roe statutes still applied to all other people. In Larkin, a group of physicians and others sought injunctive and declaratory relief regarding the enforcement of statutes that penalized the advertising or sale of abortifacients and statutes that made the willful killing of an unborn “quick” child manslaughter. The Court held that the pre-Roe statutes were constitutional and applicable against all persons except licensed medical physicians. Lower courts in Michigan have followed the Supreme Court’s lead, holding that pre-Roe statutes are constitutional except to the extent Roe and Doe overrule them and that a woman’s right to an abortion is derived solely from the Federal Constitution with no corresponding separate state right to an abortion.
Protection of the Unborn from Criminal Violence
In the 1973 case Larkin v Cahalan, the Michigan Supreme Court held that the pre-Roe statute providing for a manslaughter charge if a felonious assault upon a mother resulted in the willful killing of an unborn viable child was constitutional and enforceable, if not applied to licensed medical professionals performing legal abortions. The Michigan Legislature has passed several acts designed to protect the unborn. Though the Michigan Supreme Court has not ruled directly on any of them, the Court of Appeals held that the “Prenatal Protection Act” was constitutional and gave the defendant in People v Kurr a defense premised on the protection of her fetuses from assault. The Court held that “the defense of others should also extend to the protection of a fetus, viable or non-viable, from an assault against the mother.”
Assisted Suicide
In 1992, the Michigan Legislature passed a temporary law prohibiting the act of assisting in a suicide. In 1994, the Michigan Supreme Court held in the consolidated case People v Kevorkian; Hobbins v Attorney General that the law was validly enacted and did not violate the Michigan Constitution and that the United States Constitution did not prohibit a state from imposing criminal penalties on one who assists another in committing suicide. In the 1995 case In Re Martin, the Court considered whether life-sustaining medical treatment could be withdrawn in the absence of a clear written directive from a conscious, incapacitated patient. The Court held that a surrogate decision maker could waive the patient’s right to continue life-sustaining medical treatment if the surrogate established by clear and convincing evidence that the patient, while competent, made a statement expressing that desire. The Court found that the common law doctrine of informed consent allowed a person to refuse life sustaining treatment but that if “we are to err…we must err in preserving life.”
Healthcare Rights of Conscience
Michigan has enacted a series of conscience laws regarding abortion, including laws that permit hospitals and other health facilities not to admit patients for the purpose of undergoing an abortion, permit physicians and other staff members to opt out of medical procedures that would result in an abortion if objecting on professional, ethical, moral, or religious grounds, protect physicians from civil liability, including malpractice suits, for exercising rights under the statutes, and prohibit discrimination against employees who have participated in abortions in the past, or who express a willingness to do so in the future. The Michigan Supreme Court has yet to hear a case challenging these laws.
Cloning and Destructive Embryo Research
The Michigan Legislature was the first in the country to enact a comprehensive ban on human cloning. The Public Health Code also sets forth a series of prohibitions on the use of human embryos. The Michigan Supreme Court has not yet heard a case involving these laws.
Judicial Restraint
After a period of judicial activism, former Governor John Engler appointed three justices with conservative jurisprudential philosophies to temporarily fill vacancies on the Michigan Supreme Court in the 1990s. All three were elected to the Court in 2000. The Court now has a solid majority of four justices committed to principles of judicial restraint and the belief that the limited role of the Supreme Court is to strictly interpret the law. The Court’s jurisprudence now usually reflects strict interpretation of the state constitution and state statutes. In MGM Grand Detroit v Community Coalition for Empowerment, the majority said that it applies “the text of the constitution, a statute, or an ordinance according to its ordinary meaning. We are prepared to live with the result of the plain application of such texts, regardless of whether we personally agree or disagree with the outcome.” The current majority has even reversed precedents erroneously decided by the prior activist Court. Because the current court adheres to principles of judicial restraint, it is likely that it will defer to the Legislature when constraining Michigan’s statutory provisions protecting life and sustain the strict construction placed on the abortion statutes at issue in the 1973 cases People v Bricker and Larkin v Cahalan.
The Court
The Michigan Supreme Court consists of seven justices. Political parties nominate candidates to run for election to the Supreme Court on a nonpartisan ballot. Candidates for the Supreme Court must be eligible voters, under 70 years old, and licensed to practice law in Michigan for at least five years. Justices serve eight-year terms and may run for reelection. The governor temporarily fills any vacancies on the court, with appointment lasting until the general election. Members of the court select the Chief Justice. The Michigan Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Michigan whitepaper, please click here