Lansing — Michigan cannot prevent anti-abortion groups from screening out job candidates who are supportive of abortion — regardless of what a recent change to state law dictates — under a preliminary injunction issued by a federal judge.
U.S. District Judge Robert Jonker issued the preliminary injunction Friday, at the behest of Right to Life of Michigan, that effectively halts enforcement of a new provision in the state’s anti-discrimination law that adds abortion to the categories of activity protected under the law.
“ELCRA (Elliott-Larsen Civil Rights Act) likely threatens and impairs plaintiffs’ First Amendment expressive association freedoms, and plaintiffs’ speech is currently chilled,” Jonker wrote. “Defendants have not adequately rebutted that presumption.”
But Jonker declined to make a final ruling in the case. The federal judge said there were competing interpretations of the reach of the law that the Michigan Supreme Court should address. He said he would ask the high court, through what’s called a “certified question,” to make a determination about whether the state’s anti-discrimination law prohibits Right to Life of Michigan from screening out job candidates or firing employees based on their abortion beliefs.
Right to Life of Michigan called the decision “a welcome reprieve” that reaffirms the right to hire employees who align with the group’s views on abortion.
“Any attempt by state officials to force organizations like Right to Life of Michigan to employ staff who do not agree with our fundamental mission is a wild misuse of power and defies common sense,” Amber Roseboom, president of Right to Life of Michigan, said in a statement.
Attorney General Dana Nessel’s office said it is still reviewing the decision.
“We have significant concerns with Friday’s opinion and will present those concerns in future proceedings,” said Kim Bush, a spokeswoman for Nessel’s office.
Right to Life of Michigan’s federal lawsuit, filed jointly with Pregnancy Resource Center in the U.S. District Court of Western Michigan in February, challenged a 2023 change to the state’s Elliott-Larsen Civil Rights Act that altered the definition of sex — one of many characteristics protected from discrimination under the law — to include protections from discrimination based on “the termination of a pregnancy.”
The change, passed and enacted under the Democratic-controlled Legislature and Gov. Gretchen Whitmer in 2023, was meant to bring the language of the Elliott-Larsen Civil Rights Act in line with the 2022 voter-approved initiative enshrining abortion rights in the state constitution.
But Right to Life argued the change makes it illegal for it or the Pregnancy Resource Center to refuse to hire or choose to fire based on an individual’s support for abortion.
The suit also challenged a new mandate that groups provide abortion coverage in their insurance plans after a separate 2023 law repealed the Abortion Insurance Opt Out Act, which required women to pay for an additional insurance rider for abortion coverage.
According to Jonker’s ruling, the Michigan Department of Civil Rights told the court that it has not received a complaint against the anti-abortion groups, nor has it sent any warning letters to the groups.
The state defendants further argued that the anti-discrimination protections added to ELCRA in 2023 applied to individuals who have had an abortion, not to expressions of belief that are supportive of abortion. But Jonker noted the Michigan Supreme Court has never endorsed the state’s narrow interpretation of the law.
“Rather, as the parties acknowledge, the scope of ELCRA’s new amendment remains unsettled,” Jonker wrote. “Defendants’ proposed interpretation, then, is not conclusive.”
And Michigan officials, Jonker noted in his Friday opinion, have not disavowed enforcement of the law against Right to Life of Michigan or the Pregnancy Resource Center. The state’s refusal to disavow enforcement is “puzzling,” Jonker siad.
“If plaintiff’s conduct is not prohibited by ELCRA, as those defendants claim, why refuse to commit to not enforcing the statute against them?” Jonker wrote. “Maybe defendants believe that at least some of the plaintiffs’ proposed conduct is prohibited by ELCRA, and thus, subject to enforcement. Defendants often hedge their position on this throughout briefing.”
Jonker noted there are “unsettled questions” of the state law that permeate the case and deserve clarification. For example, the state argues the statute applies narrowly, only protecting those who have had an abortion from discrimination, but Right to Life has argued the law has a broad application and protects individuals who express beliefs in support of abortion.
The questions, Jonker argued, call for answers from the Michigan Supreme Court, the bench best suited to litigate state law issues. Jonker said he would send a certified question to the Supreme Court on the issues. Under the rules governing certified questions, the state high court can either reject or rule on the questions presented, based on its discretion.
“Normally, the court would chart a course through thorny state law questions,” Jonker wrote. “But this controversy is different. In this case, unlike others, plaintiffs’ constitutional claims either hinge on, or are materially affected by, ELCRA’s scope.”
Regardless of how the Supreme Court rules, Jonker concluded while issuing the preliminary injunction, it is likely Right to Life and Pregnancy Resource Center would prevail on at least some of their constitutional claims since, even when limited to the state’s narrow interpretation, the law likely violates the group’s constitutional rights.
“…Plaintiffs are likely to receive the relief they sought from this litigation—the confidence that the 2023 amendments cannot bar plaintiffs’ intended conduct,” Jonker said. “The only question is whether that confidence comes by way of state law, or the federal constitution.”
eleblanc@detroitnews.com
This article originally appeared on The Detroit News: Right to Life can’t be forced to hire pro-abortion employees, judge says
Reporting by Beth LeBlanc, The Detroit News / The Detroit News
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By Beth LeBlanc, The Detroit News | USA TODAY Network
