In Right to Life of Michigan v. Nessel, (WD MI, July 10, 2026), two pro-life organizations, Right to Life of Michigan and Pregnancy Resource Center, brought a 1st Amendment challenge to 2023 amendments to Michigan's Elliot-Larsen Civil Rights Act. Among other things, those amendments expanded the definition of sex discrimination to include discrimination on the basis of the termination of a pregnancy. The state moved to dismiss the complaint claiming that there is no realistic threat of enforcement against these organizations. The court, in a 63-page opinion, concluded that whether there is a realistic threat of enforcement depends on how several provisions of the Act are interpreted. Therefore, it certified to the Michigan Supreme Court five interpretive questions on the applicability of the Act to organizations like plaintiffs.
The court said in part:
Defendants argue that ELCRA is narrow; in their view, the statute only prohibits discrimination against employees whose “medical history includes an abortion.”....
Plaintiffs, on the other hand, argue that ELCRA is broad. In their view, the statute not only prohibits adverse action based on the employee’s decision to terminate a pregnancy but rather extends as far as protecting employees that “advocat[e] on behalf of someone else’s right to” terminate a pregnancy..... Effectively, then, the statute would prohibit them from taking any adverse action against anyone who expresses pro-choice beliefs.
The questions that the court certified include whether the Act prohibits pro-life organizations from refusing to recruit, hire or employ, or recruit as volunteers, not only those who have had an abortion, but also those who advocate for abortion; those who associate with people who have received an abortion; or those who express pro-choice viewpoints? It also asked the same questions as to the ban on discrimination by public accommodations. Finally, it asks about excluding abortion coverage from health care packages.
The court issued a preliminary injunction to preserve the status quo while the Michigan Supreme Court is considering the certified questions. The court observed:
If the Michigan Supreme Court concludes that ELCRA covers all of Plaintiffs’ conduct, they are likely to succeed on the merits of their expressive association claim....
If the Michigan Supreme Court finds that ELCRA does not apply to plaintiffs’ conduct, Plaintiffs still achieve a favorable result....
Michigan Advance reports on the decision.
