Michigan Gov. Gretchen Whitmer’s move this week to expressly exempt First Amendment activities from the statewide stay-at-home order is a victory for pro-life protesters, while leaving a Detroit abortion provider concerned for the safety and privacy of patients.
On April 7, Whitmer issued additional guidance to her original executive order, which suspended activities not necessary to sustain or protect life during the coronavirus pandemic, to clarify that it allows for “expressive activities protected by the First Amendment within the State of Michigan.”
People exercising their rights must “adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the person’s household.” (An executive order signed Thursday to extend and expand the original stay-at-home directive does not address First Amendment activities.)
The move comes after the American Freedom Law Center, based in Ann Arbor, sued Whitmer and the city of Detroit on behalf of protesters. The lawsuit, filed April 1, alleges the stay-at-home order violated the constitutional rights of Andrew Belanger, Justin Phillips and Calvin Zastrow during a police encounter on March 31 at the Scotsdale Women’s Center in northwest Detroit.
Detroit police officers issued a misdemeanor citation to Belanger for “refusing to leave [and] protesting outside while [the] shutdown is in effect,” according to the complaint.
The lawsuit says Belanger was “engaging in expressive religious activity” from the sidewalk while practicing social distancing.
Belanger’s attorney Robert Muise told Detour Detroit he expects the state’s update will lead to a resolution in the lawsuit.
“The governor issued guidance clarifying that what our clients are doing is not prohibited by the order,” he said. “If the city of Detroit will dismiss the criminal charge against them — and there’s no basis now for it because the basis for it was a violation of [the executive order] — then we’ll have matters resolved.”
Protesters have continued to gather outside Scotsdale Women’s Clinic since the encounter with Detroit police. The clinic’s executive director, Shelly Miller, told Detour that protesters were already set up when she drove into work Thursday morning.
“They’ve got the entire front lawn covered in signs and all sides of our driveway, and they’ve got lounge chairs out there for when they want to sit down,” she said, “They’re calling me out by name and talking to patients.”
Other anti-abortion groups across the U.S. have pledged to continue protesting during the COVID-19 crisis, and protesters in Charlotte, N.C., were arrested last month for violating the state’s ban on large gatherings.
Whitmer’s guidance does not specifically address religious freedom; it extends to all First Amendment rights. However, Wayne State law professor Jonathan Weinberg questioned whether the governor was reacting to the lawsuit and blowback from religious groups.
“Clearly in Michigan, we’re giving religiously-motivated behavior a pass, as demonstrated by what the governor has done when it comes to worship service,” Weinberg said. “But I don’t think the law requires the state to do that.”
Whitmer’s office did not reply to a request for comment.
The City of Detroit declined to comment on the issue. A spokesperson told Detour Detroit that city enforcement actions taken by the Detroit Police Department as of April 3 included 792 location checks, 369 warnings, 74 citations and nine parties broken up.
In a 12-minute video released by Belanger’s organization, protesters can be heard arguing with Detroit police officers and asserting their rights to free speech and assembly.
“This isn’t essential to be out here right now,” an officer says, adding that protesters were facing a $500 fine.
Ordinarily, Miller said, the protests are a near-daily fixture at the clinic, with protesters displaying photographs of fetal body parts and acting aggressively to “get in people’s faces” while trying to dissuade patients from entering the clinic. About two weeks ago, she said, they began keeping their distance and no longer approach patients and staff as they drive up to the facility or cross the sidewalk.
But to accommodate social distancing requirements under the stay-at-home order, Miller was forced to halt the clinic’s volunteer escort program and has not been allowing patients (except minors) to bring a family member or friend to appointments. She said that makes patients even more vulnerable.
Miller has kept the clinic open to provide services to patients during the pandemic. The clinic is seeing fewer patients to allow for enhanced sanitizing and distancing protocols to ensure the safety of workers and patients. She said everyone wears cloth or washable masks “where appropriate.”
“We are not hoarding masks or other products so that hopefully there is enough to go around,” she said.
The American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology released a joint statement on March 13 advising that abortions should not be categorized as a procedure that can be delayed, since delays can render the procedure inaccessible under most state laws. Abortion access is coming under threat across the U.S. during the COVID-19 outbreak, and Oklahoma, Alabama, Iowa, Texas and Ohio have banned surgical abortions during the pandemic.
“I had a patient tell me the other day she’d rather be sick with COVID-19 than be pregnant with an unwanted pregnancy,” said Miller. “She only said that in the context of how grateful she was that we all got up and came to work and stayed open so that she could get service.”
Nina Misuraca Ignaczak is a metro Detroit freelance journalist and publisher of the Planet Detroit Newsletter.