A federal judge has temporarily barred enforcement of a provision in Michigan’s main civil rights law that forbids employment discrimination against people who have exercised their right to an abortion. U.S. District Court Judge Robert Jonker also asked the Michigan Supreme Court to weigh in with guidance that could help him sort through the interplay of state and federal rights in the case.
The lawsuit was filed by the anti-abortion rights organization Right to Life of Michigan. The legal action claims the recently adopted provision of Michigan’s Elliott-Larsen Civil Rights Act places the organization in an impossible position. The provision forbids discrimination in hiring or promotion based on exercising the right to have an abortion.
“It seems really counterintuitive to say your entire mission is to promote pro-life values, and yet you may be forced to hire somebody who completely discards those beliefs,” said Genevieve Marnon, legislative director for Right to Life of Michigan. “On the surface it seems really counterintuitive, don’t you think?”
The change to Michigan law was adopted three years ago following voter approval of a reproductive rights amendment to the state constitution.
Attorney General Dana Nessel’s office said the federal judge’s decision is being reviewed. The state has argued there is no reason for a preliminary injunction since there have been no efforts to enforce the law in the manner described by Right to Life.
The request by the federal judge for the state’s highest court to issue an advisory opinion is unusual but not unheard of, said University of Michigan Law Professor Sam Bagenstos.
“Sometimes a federal judge will say, actually, this question of state law is sufficiently unsettled or unclear,” he said. “So, I need an authoritative answer from the state courts because the state courts get to tell us what state law means.”
The Michigan Supreme Court is not obligated to give an opinion or even reply to the request. The Michigan Supreme Court’s current makeup is six Democratic-affiliated justices to one Republican-nominated justice.
