Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Federal court issues preliminary injunction against enforcement of Michigan employment nondiscrimination law against anti-abortion orgs, (Jul 14, 2026)

By Brandi O. Brown, J.D.

“However, because potentially limiting constructions of the new statutory language may avoid or limit the breadth of the constitutional questions,” the court is certifying those constructions to the Michigan Supreme Court before making final decisions on the merits.

A federal district court in Michigan has granted a preliminary injunction barring Michigan officials from enforcing certain provisions of the Elliott-Larsen Civil Rights Act (ELCRA) against Right to Life of Michigan and Pregnancy Resource Center (PRC), finding the organizations have standing to pursue constitutional challenges to 2023 amendments expanding protections related to the termination of a pregnancy. The court also announced its intent to certify several unresolved questions of state-law interpretation to the Michigan Supreme Court.

The court denied the motions to dismiss filed by the defendants, concluding that the organizations faced a credible threat of enforcement under the ELCRA and that they could seek pre-enforcement review of their constitutional claims. The court concluded that “every preliminary injunction factor favors” the two organizations and it granted their motion for a preliminary injunction, enjoining the defendants from enforcing the challenged ELCRA provisions against them.

In February, the two organizations sued Michigan Attorney General Dana Nessel and other state officials, challenging 2023 amendments to the ELCRA that added protections related to the termination of a pregnancy. The organizations alleged that the law violates their First Amendment rights by restricting their ability to hire, retain, and use volunteers who share their pro-life beliefs and by potentially requiring abortion-related health coverage.

The amendments. in May 2023, Michigan amended the ELCRA to extend its protection to employment discrimination based on abortion, eliminating what had been referred to by some as a “carve out” that had allowed employers to treat abortion adversely. The state did so by (1) amending the definition of “sex” to “include... pregnancy, childbirth, the termination of a pregnancy, or a related medical condition;” (2) amending the ELCRA to provide that employers may not treat “an individual affected by pregnancy, childbirth, the termination of a pregnancy, or a related medical condition differently for any employment-related purpose;” and (3) by repealing the provision that allowed employers to opt-out of covering abortion in their insurance policies.

While under the ELCRA, any person “may apply” to the Michigan Civil Rights Commission for a five-year, revocable Bona Fide Occupational Qualification (BFOQ) exemption, the two anti-abortion groups allege that they would need to “hire a lawyer” to complete the application, given its specific requirements.

Anti-abortion missions. Right to Life of Michigan and PRC are pro-life nonprofit organizations that require their employees to support their anti-abortion missions. Right to Life has approximately 40 employees and hires for approximately four positions each year. Job applicants are asked for their thoughts on the organization’s mission and values, both by email and in person, and, if hired, they must agree to its ethics code and guiding principles. In job descriptions and emails to candidates, Right to Life wants to warn applicants that they must “avoid any conduct that undermines... opposes or is inconsistent with” its pro-life mission and it also wants to update its employees’ manuals to state that it will “terminate” anyone who engages in such conduct.

PRC, which uses volunteers, requires would-be volunteers to apply for the position and to “affirm” that they agree with PRC’s positions on religion, abortion, and marriage. PRC wants to update its volunteer application to clarify that volunteers “commit to not undergoing, promoting, or facilitating, anything contrary” to PRC’s principles, “including elective abortions.”

Refraining from policies and changes. Both organizations alleged they have refrained from implementing employment policies and public statements clarifying those requirements because they fear liability under the amended law.

The defendants argued the case should be dismissed because the organizations faced no realistic enforcement threat and because the challenged provisions either do not apply to the proposed conduct or are subject to exemptions.

However, the court rejected those arguments, emphasizing that Michigan actively enforces the ELCRA, permits complaints by allegedly aggrieved individuals, and has refused to disavow enforcement against the organizations. The court found those circumstances sufficient to establish standing under Sixth Circuit precedent governing pre-enforcement challenges. It rejected the other standing arguments made by the defendants, as well as the immunity arguments raised.

Certified questions. Even though it concluded that standing exists, the court decided not to immediately resolve the merits of the constitutional claims, instead deciding to certify questions to the Michigan Supreme Court. The federal court concluded that there were key questions concerning the scope of ELCRA that remain unsettled under Michigan law, including whether the Act’s employment provisions prohibit organizations from refusing to hire or retain individuals because they have had abortions, advocate for abortion, associate with abortion patients, or hold pro-choice viewpoints. Additional questions identified by the court concern the statute's notice provisions, employee-benefit requirements, and application to volunteers.

Injunctive relief ordered. Moreover, the court concluded the organizations had satisfied the requirements for preliminary injunctive relief, and that the organizations are likely to prevail on at least some claims, either because the Michigan Supreme Court may adopt narrowing constructions of the ELCRA or because broader interpretations could violate constitutional protections. In particular, the court focused on the organizations’ expressive-association arguments, noting that requiring mission-driven pro-life groups to employ individuals who advocate contrary views could substantially burden their ability to convey their message. It also explained that the alleged infringement of First Amendment rights constitutes irreparable harm and that the public interest favors preventing constitutional violations.

The case is No. 1:26-cv-390.

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